Supreme Court Justice Samuel Alito delivered an impassioned and alarming speech on Thursday evening that touched on a number of hot-button political issues — an unusual move from a Supreme Court justice that provoked sharp rebukes from a number of legal experts.
The justice’s words, delivered virtually as a keynote speech to the right-wing Federalist Society, made suspect warnings over encroachments on individual liberty in the United States. Alito criticized Supreme Court rulings on marriage equality, for example, and discussed his concerns over restrictions being issued by state governments in order to deal with the coronavirus pandemic.
“We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020,” Alito said.
While claiming to be a “judge, not a policymaker,” Alito said his words should not be “twisted or misunderstood.” Yet the associate justice’s speech was brazenly political.
On COVID-19, Alito decried “previously unimaginable restrictions on individual liberty,” describing the crisis as a “sort of constitutional stress test.”
The U.S. response to the pandemic, including governors’ emergency orders that have regulated some aspects of regular life, “has highlighted disturbing trends that were already in evidence before the pandemic struck,” Alito asserted.
The justice described such orders as the “dominance of lawmaking by executive fiat.”
Alito expressed misgivings at rulings the Supreme Court had made earlier this year allowing governors to impose restrictions on churches. Religious freedom, he insinuated in his remarks, is under attack.
“For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry and can’t be tolerated, even when there is no evidence that anybody has been harmed,” he said.
“The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs,” Alito added.
Continuing on the subject of religion, Alito appeared to lament the fact that society is shifting toward acceptance of marriage equality and other LGBTQ rights. He criticized the 2015 Obergefell v. Hodges Supreme Court ruling, which recognized the legality of same-sex marriage across the entirety of the United States.
In making that ruling, Alito argued, the Supreme Court had caused those who say only heterosexual marriage should exist to be viewed negatively or even be punished by employers, schools, or other entities for expressing those views. Even though “the vast majority of Americans” defined marriage in heterosexist terms “until very recently, he complained, “Now, it’s considered bigotry.”
Alito also complained about the inability of religious bigots to express their views openly without consequence, describing it as a free speech issue as well as one of religious tolerance.
Others quickly pushed back against the idea that freedom of worship ought to protect people from being criticized for bigotry.
“There’s no constitutional right that protects a person from being called a bigot when the person is a bigot,” former Chicago Tribune editor Mark Jacob wrote in a tweet. “Alito is a radical who wants his religion to control your life.”
CNN commentator Keith Boykin also noted that the associate justice was hypocritical in trying to protect “unpopular religious beliefs.”
“This from the same Supreme Court Justice Alito who voted to uphold Trump’s Muslim ban in the 2018 case, Trump v. Hawaii,” Boykin said.
Alito also spoke critically in his speech of reproductive rights, targeting Washington State specifically for requiring all pharmacies to stock the emergency contraceptive pill Plan B. To justify his opposition to the Washington State policy, the justice incorrectly asserted that the drug “destroys an embryo after fertilization.”
“Plan B doesn’t do that,” OB/GYN Leah Torres said on Twitter. “It can’t do that.”
“Alito is not a doctor,” Torres added, noting his extreme ignorance on the issue.
Others decried Alito’s decision to deliver his extraordinarily partisan speech while serving as a sitting justice of the nation’s highest court.
“This speech is like I woke up from a vampire dream. Unscrupulously biased, political, and even angry,” former federal prosecutor and University of Baltimore law professor Kim Wehle said. “I can’t imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court.”
“Alito’s speech is actually making the best argument for Court reform,” said Dan Epps, associate professor of Law at Washington University in St. Louis. “There’s just no good justification for a system that gives an angry partisan like this a veto on legislation.”