Justice Samuel Alito called out for highly “partisan” speech on COVID-19 rules and same-sex marriage

The Supreme Court justice’s “angry” Federalist Society speech makes a good case for court reform, scholars say

By Igor Derysh
November 13, 2020 5:02PM (UTC)
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Samuel Alito (Chip Somodevilla/Getty Images)

Conservative Supreme Court Justice Samuel Alito prompted stark warnings from legal scholars about the politicization of the nation's highest court after he aired a laundry list of conservative grievances during a Thursday speech before the Federalist Society.

Alito, who was appointed to the bench by former George W. Bush, addressed the annual conference held by the Federalist Society, the shadowy dark-money conservative group which has bankrolled and guided President Donald Trump's deeply conservative judicial picks, via Zoom.

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The justice made unusually incendiary remarks about contraception, coronavirus restrictions and the threat he believes religious freedom faces from advocates of same-sex marriage. Alito claimed that the court's Obergefell v. Hodges decision, which effectively legalized same-sex marriage nationwide, bred intolerance for those who believe marriage is a union between one man and one woman.

"Until very recently, that's what the vast majority of Americans thought," he said. "Now, it's considered bigotry."

Alito also downplayed a controversial case in which a Colorado baker refused to make a wedding cake for a same-sex couple, arguing that the pair won the support of "celebrity chefs" and was later "given a free cake by another bakery."

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The justice also criticized state responses to the coronavirus pandemic as "unimaginable restrictions on individual liberty," slammed a brief filed by Democratic senators in a gun rights case and chastised the Obama administration's "protracted campaign" and "unrelenting attack" against the Little Sisters of the Poor, who sued to block the administration from enforcing its birth control health coverage requirement.

"In certain corners," he claimed, "religious liberty is fast becoming a disfavored right."

Alito did not make any mention of Trump repeatedly overstepping his own legal authority nor his frequent attacks on the judiciary. However, the justice did seem to hit back at Democratic calls to expand the court by warning that the party wanted to see the judiciary "restructured."

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Some legal scholars suggested that Alito's staunchly political remarks were as good an argument for restructuring the court as any.

"Alito's speech is actually making the best argument for Court reform," Dan Epps, a law professor at Washington University in St. Louis, said on Twitter. "There's just no good justification for a system that gives an angry partisan like this a veto on legislation."

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"Justice Alito is one-sixth of the furthest-right 6-3 majority on the Supreme Court in a century...and he spoke tonight as if conservatives are an embattled minority under liberals' cruel thumbs," Steven Mazie, a Supreme Court expert at Bard College, wrote.

Along with his comments about same-sex marriage and abortion advocates, Alito repeatedly claimed that religious liberty was under attack, including by governors responding to the pandemic.

"The pandemic has resulted in previously unimaginable restrictions on individual liberty," he said. "The COVID crisis has served as a sort of constitutional stress test, and in doing so, it has highlighted disturbing trends that were already in evidence before the pandemic struck."

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Alito went on to criticize a group of Democrats who filed a brief urging the court last term to reject a gun rights case or risk allegations that it was motivated by politics. The five Democrats said the "Supreme Court is not well," and they suggested it might need to be "restructured."

"This little episode, I'm afraid, might provide a foretaste about what the court will face in the future," he said, "and therefore I don't think it can simply be brushed aside."

Legal scholars were stunned that Alito disregarded Supreme Court norms to publicly speak out on politically-charged issues facing the court.

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"I'm not surprised that Justice Alito believes any of those things. One need only read his written opinions to see most of them," Steve Vladeck, a federal court expert at the University of Texas School of Law, tweeted. "I'm surprised that he decided to *say* them in a public speech that was livestreamed over the internet."

"As politically partisan a speech as I've ever seen from a justice: arrogant, tendentious, and sloppy," Harry Litman, a former U.S. Attorney who now teaches constitutional law at the UCLA School of Law and UC San Diego, wrote.

"Justice Alito seems to be following Trump's pathetic foray into self-pity," Harvard constitutional law scholar Laurence Tribe said.

"This speech is like I woke up from a vampire dream," Kim Wehle, a former federal prosecutor who now teaches law at the University of Baltimore, added. "Unscrupulously biased, political, and even angry. I can't imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court."


Igor Derysh

Igor Derysh is a staff writer at Salon. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

Tips/Email: iderysh@salon.com Twitter: @IgorDerysh

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