Supreme Court Justice
The conservative justice’s comments spanning the culture wars at a Federalist Society event came as Chief Justice John Roberts has tried to convince a politically polarized nation that the court isn’t just another political institution, following bruising confirmation battles for President Donald Trump’s nominees that strengthened the conservative majority.
The remarks also come as the court considers a number of hot-button cases. One, Fulton v. Philadelphia, pits two issues against one another that were discussed at length by Alito in his speech Thursday night: LGBTQ rights and religious liberty.
“We’re living in a very partisan moment,” said Georgia State law professor Eric Segall, who has criticized Alito’s rulings. Supreme Court justices should recognize “that this is not the time to stir this pot,” he said.
Rachel Laser, president and CEO of Americans United for Separation of Church and State, called Alito’s speech “inappropriate and deeply disturbing.”
Alito “signaled how he will vote on issues that are almost certain to come before the court, such as coronavirus public health restrictions on both secular and religious gatherings, and religious freedom being misused to justify discrimination against LGBTQ people and others,” she said. “He’s dropped even the pretense of the impartiality that judges are obligated to have.”
But former Alito clerk Barbara Smith, co-chair of the appellate and Supreme Court group at Bryan Cave Leighton Paisner, said the George W. Bush appointee “spoke movingly about the importance of fundamental constitutional rights—religious liberty and speech—that are all too often under attack in our modern discourse.”
Alito “implored lawyers to be vigilant in guarding these liberties and in protecting those in our society who are marginalized and unpopular because of their viewpoint or religion,” Smith said.
His remarks follow the recent contentious argument in Fulton, involving Catholic Social Services’ attempt not to work with same-sex couples who want to foster children. After the argument, it appears that the 6-3 conservative majority will rule in CSS’ favor.
“He should not be talking about alleged threats to religious liberty when the Philadelphia case was argued last week,” Segall said. “That’s insane.”
The Federalist Society didn’t comment.
Justices and judges often speak on topics that are controversial and newsworthy, said the libertarian Cato Institute’s Ilya Shapiro. “I don’t think we should keep judges out of the public sphere,” he said.
Among the wide range of topics Alito brought up was what he cast as a culture of repression of conservative views, in which he said one can no longer say that marriage is between one man and one woman. The justice dissented form the 2015 case that recognized same-sex couples’ right to marry.
Berkeley Law Dean Erwin Chemerinsky said he “cannot think of any speech like this one that discussed so many issues and in a clearly ideological, partisan way.”
Shapiro said Alito was careful to only express his views on cases where he’s actually written an opinion—often a dissent. And in his speech he didn’t go beyond what he previously wrote, Shapiro said.
UCLA law professor Adam Winkler, who called Alito’s comments “unfortunate,” said “many Supreme Court experts don’t consider Justice Alito very open-minded about these matters anyway.”
Alito on Thursday night discussed a case that was at the court this summer and is pending there again, involving the contentious topic of pandemic restrictions affecting churches. The case brought by Calvary Chapel in Nevada was turned away by a divided court this summer, prompting Alito to dissent then and to echo those comments in his Federalist Society speech.
“Forget about worship and head for the slot machines or maybe a Cirque du Soleil show,” Alito said.
A spokesperson for the Nevada Attorney General’s Office declined on Friday to comment on Alito’s speech, “due to pending litigation.”
The lawyer representing the church, Alliance Defending Freedom’s David Cortman, said Alito “spoke on the grave threats we face on religious freedom and free speech, which are at the heart of Alliance Defending Freedom’s mission. As Justice Alito pointed out previously, there is no constitutional right to gamble, but there is one that protects attending worship services. We look forward to the day when, by the governor’s order or a court order, church gatherings are, at a minimum, treated equally to other gatherings.”
Segall noted that the late Justice Antonin Scalia once made an off-hand remark about the pledge of allegiance when a challenge to the phrase “under God” was pending at the court. Scalia ended up recusing from the case because of it. “How is what Alito did any different?” Segall asked.
Laser said the Scalia incident “should have been a lesson to Alito.” She said that justices “must be careful never to pre-judge—or appear to be pre-judging—cases,” and that “when they give that impression, as Alito has done here, it greatly undermines public confidence in our judicial system.”
The late Justice Ruth Bader Ginsburg made headlines of her own in her day for comments seen as inappropriate, including derogatory ones about Trump.
Alito’s Federalist Society speech may fall closer to the Ginsburg side of the spectrum than that of his fellow Bush-appointee Roberts, who keeps more of an even keel in public.
When Roberts spoke to the Federalist Society in 2007, he focused more on the separation of powers and the importance of an independent judiciary.
And when new justice Brett Kavanaugh spoke to the conservative society last year, he was still maintaining a low profile after his confirmation hearings that featured accusations of sexual assault that the nominee vociferously denied.
The biggest news Kavanaugh made at that speech was his announcement that the Supreme Court cafeteria would start selling pizza. The court’s junior justice is in charge of the cafeteria committee.