Published by the Freedom From Religion Foundation, Inc. FFRF.org

Alito’s speech shows need for court reform

Vol. 37 No. 10 December 2020
Theocracy cartoon by Steve Benson                                                                                                                                                                                                                                                                                 

Supreme Court Justice Samuel Alito consummated the unholy union between the federal judiciary and the Federalist Society in a one-sided speech on Nov. 12.

“It’s shocking to hear a supposedly impartial Supreme Court justice speak in such a hyperpartisan, reckless and entitled manner,” says FFRF Co-President Annie Laurie Gaylor, “Alito didn’t sound like a principled jurist, but a Christian Nationalist trading talking points with Sean Hannity on Fox News.”

It’s no secret that Donald Trump let the ultraconservative Federalist Society select nominees: “We’re going to have great judges, conservative, all picked by the Federalist Society.” Nearly all of President Trump’s 200-plus judicial nominees, including his three Supreme Court justices, have had ties to the conservative group.

Alito’s speech was the screed of an embittered, embattled minority fighting against the overwhelming majority. It highlights a central problem this country will face moving forward. Most Americans are not so conservative. Alito’s views are increasingly unpopular. He espouses the views of the conservative white, male, Christian Nationalist demographic. A shrinking demographic; a dwindling minority. But Alito is part of a 6–3 majority on the Supreme Court. He’s an unpopular minority but empowered for life on a packed court.

This speech was an admission, a confession. Alito admitted that we are a nation governed by minority rule and confessed that, although their grasp on legislative power is slipping, Alito and his five buddies will solidify that minority rule with their judicial power.

Alito’s words have alarming implications for FFRF’s work. FFRF has been racing to fight against a radical attempt to redefine religious freedom, and Alito made it clear that this push is only going to get stronger. In Alito’s fantasy, religious liberty requires that laws exempt Christians who disagree with the law, that Christians be allowed to discriminate as they see fit, and that Christian views on same-sex marriage and reproductive rights must be forced on the entire legal system.

Shockingly, he did this while condemning public policy based on science and reason, even in the middle of a lethal pandemic: “Just as the COVID restrictions have highlighted the movement toward rule by experts, litigation about those restrictions has pointed up emerging trends in the assessment of individual rights. This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”

Alito talked about a famous religious liberty case, a Supreme Court decision called Employment Division v. Smith authored by Justice Antonin Scalia, which Alito claimed “cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment.” He added, “Congress was quick to respond. It passed the Religious Freedom Restoration Act (RFRA), to ensure broad protection for religious liberty.” Just eight days before this speech, Alito participated in oral arguments in Fulton v. Philadelphia, a case in which a Catholic organization is asking Alito and the other justices to overturn the very decision Alito just maligned.

Alito also opined on the Masterpiece Cakeshop case, which was heavily cited by the parties in Fulton, leaving no doubt which way he will vote. He could not have been more clear: “For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed.”

“I’ll wager a year of my nonprofit salary that he finds for the Catholic organization and against the city,” says FFRF’s Director of Strategic Response Andrew Seidel.

Alito inappropriately discussed cases that have already been ruled on an interim basis, but that are continuing to work their way to the high court, such as pandemic “restrictions,” specifically discussing cases in Nevada and California, and snidely making his loathing for such orders clear: “Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment, which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause.” He also spoke of a pharmacy case out of Washington, in which a business meant to provide care for people refused a prescription. In Alito’s biased retelling, this was about “so-called morning-after pills, which destroy an embryo after fertilization.”

FFRF has no faith that Alito will do the right thing in these instances precisely because his speech smacked of an entitled man above the law, not a man of the law.

Alito certainly did not mean for his speech to be a clarion call for court reform, something he condemned in his speech. But it is. If America fails to heed this call, we’ll pay a dear price. It’s time to expand the Supreme Court and the federal judiciary.