In more than 40 years of watching Supreme Court justices, I have never seen a speech like Justice Samuel Alito’s recent address before the Federalist Society. Descriptions of Alito’s 30-minute oration have included phrases like ultrapartisan, incendiary, unusually political, tendentious and the judicial equivalent of a Trump rally. These things are all true. Even more ominously, it was also an engraved invitation from Alito to far-right litigants who can hardly wait to take advantage of the Court’s strengthened right-wing majority to pursue such pet projects as overturning LGBTQ and reproductive rights.
And that should make all of us sit up and take notice.
High on Alito’s list in his speech were what he called “sweeping restrictions” on “individual liberty” imposed by governors and others to help combat the COVID-19 pandemic. He specifically censured restrictions on religious assembly, like limits on the number of people who can an attend in-person service, even though a challenge was filed on the very day of his speech to such a restriction in New York and is now before the Court.
Alito claimed that there has been an “unrelenting attack” and a “protracted campaign against the Little Sisters of the Poor,” even though it was that organization that chose to file lawsuits against compromises on contraceptive coverage by the Obama administration.
He condemned a friend-of-the-court brief filed by five Democratic senators in a gun safety case as “an affront to the Constitution and the rule of law.”
He disparaged reliance on “experts” and “scientific expertise” by “executive officials,” the Court’s Obergefell decision recognizing equal marriage rights and the alleged censorship it has caused of people who object to it, Plan B contraception, the purported “danger” that religious liberty will become a “second class right,” and more.
To far-right advocates, this is akin to saying the buffet is open.
Just how far the Court goes will, of course, depend on Chief Justice Roberts and Trump’s latest Supreme Court justice, Amy Coney Barrett.
But Alito, at least, has publicly forecast his vote in the pending challenge to COVID-19 restrictions on in-person religious gatherings in New York, and at least Justices Gorsuch, Kavanaugh, and Thomas are likely to agree.
Those four will also probably vote to grant an exemption from civil rights rules to a religious adoption group in a pending Philadelphia case, and will generally try to provide government funding to religious groups even as they are subject to fewer rules that apply to other organizations. Rulings against LGBTQ and reproductive rights are also likely. Decisions questioning or even overruling future Biden administration rules relying on “scientific expertise” are quite possible as well.
So, what’s to be done?
At a minimum, all this should ratchet up pressure on the Biden administration to prioritize the filling of forthcoming judicial vacancies. Although there are no vacancies on the Supreme Court at the moment — as a result of Republicans’ rush to put Justice Barrett on the court after the recent death of Justice Ginsburg — the court hears only a small number of cases each year. For most people, federal courts of appeal are the courts of last resort. Although there are more than 50 Trump judges on those courts, appointing fair-minded judges to help counteract their views is critical.
Also critical is ethics reform for the Supreme Court. No judge on any other federal court would have given the speech Alito did — because they would have known that it likely would violate ethics rules that require judges to refrain from political activity and to avoid even the appearance of impropriety or bias. As Senator Elizabeth Warren has already noted, such “nakedly partisan” acts by justices could be avoided by legislation such as a bill she has proposed to require justices to “follow the ethics rules other federal judges follow.”
Whether other action is appropriate, and what that action should be, are questions that future decisions and conduct by members of the Supreme Court will help answer.
At the very least, Justice Alito’s Federalist Society speech is a stark reminder that the Court’s newly empowered right-wing majority is feeling its oats — and we should brace ourselves for what comes next.
Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.