Why so sour, Justice Alito? Your side in the Supreme Court is winning.

November 13, 2020

By Ruth Marcus,

You might think, given that the Supreme Court’s conservative majority has just been buttressed with a sixth conservative justice, that the mood of the keynote speaker at the Federalist Society’s annual convention would be jubilant. Triumphant, even.

Not Justice Samuel A. Alito Jr., who helps anchor the conservative end of this very conservative court. Alito’s address — one of several he has delivered to the conservative lawyers group, but this time done via streaming video — was, instead, suffused with grievance.

About efforts (unsuccessful) to prevent federal judges from belonging to the Federalist Society. About politically correct pressure on law school campuses that exposes students to “harassment and retaliation if they say anything that departs from the law school orthodoxy.”

About a friend-of-the-court brief by five Democratic senators suggesting that the court might need to be “restructured,” calling it “an affront to the Constitution and the rule of law” — comparing it to a tank pulling up outside a courthouse in an authoritarian regime.

He lamented that the Second Amendment had been treated as “the ultimate second-tier constitutional right.” He asserted that “you can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”

He suggested a gay couple that sought a wedding cake from a baker who opposed same-sex marriage had nothing to complain about: They got a free cake from another baker and “celebrity chefs have jumped to the couple’s defense.”

It was a distillation of conservative victimhood, perhaps unsurprising from a talk-radio host, remarkable from a sitting justice, even if it did not particularly depart from his written work. And even more remarkable because it was delivered at precisely the time when legal conservatives, through ghoulish good luck (the death of Justice Ruth Bader Ginsburg just before the election) and unbridled hardball (preventing Merrick Garland’s confirmation in 2016; ramming through Amy Coney Barrett’s), are in the ascendance.

Last year’s Federalist Society keynote, before a cheering, packed audience, featured Justice Brett M. Kavanaugh. His anodyne theme, in his first public remarks since the confirmation battle, was gratitude. “I will always be on the sunrise side of the mountain,” Kavanaugh pledged. “I will always be not afraid.”

Alito saw no sunrise, and much to fear, in particular about how “the covid crisis has served as a sort of constitutional stress test.”

He warned ominously that “the pandemic has resulted in previously unimaginable restrictions on individual liberty.” Alito wrapped that caution in caveats: that his message should not “be twisted or misunderstood,” that “I am not diminishing the severity of the virus’s threat to public health,” that “[I am not] saying anything about whether any of those restrictions represent good public policy.”

But he was, inescapably.

For Alito, the pandemic response illuminates the unfortunate “dominance of lawmaking by executive fiat rather than legislation,” in particular the emergence of a powerful administrative state. “Every year, administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives,” he complained. “And what have we seen in the pandemic? Sweeping restrictions imposed, for the most part, under statutes that confer enormous executive discretion.”

To which I say: Thank goodness. As Alito himself acknowledges, “broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate.” And where he is taken aback by what he describes as “the movement toward rule by experts,” I think most of us, watching the flailing pandemic response and the alarming current trajectory, are grateful for such expertise, not fearful of it. We need more Faucis, more empowered, not fewer.

Alito also perceives, as part of the pandemic response, a disturbing disregard for religious liberty. “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right,” he said.

Alito cited pandemic “restrictions that blatantly discriminated against houses of worship.” I wouldn’t defend every rule governors or state health officials have adopted — for instance, Nevada’s seeming indulgence of casinos over churches, which the Supreme Court let stand. The difficult question is whether and how much courts are going to second-guess this kind of line-drawing in the face of an undoubted emergency.

But Alito’s suggestion that “religious liberty is in danger of becoming a second-class right” is inconsistent with reality. In particular, it is inconsistent with the reality on his own court. Notwithstanding Alito’s accusations, the majority has been extraordinarily and increasingly solicitous of claims of infringement on religious freedom — and with Barrett’s addition is poised to become even more so.

In three of three cases last term, the court ruled solidly in favor of religious institutions — carving out a broad exemption from federal anti-discrimination laws for employees of religious institutions, requiring that state aid to private schools must include religious ones and upholding a Trump administration rule that exempted an order of Catholic nuns from having to arrange contraceptive coverage for employees.

Justice Alito, your side is winning. From my vantage point, that’s the constitutional stress test that should worry us all.

Read more: Fareed Zakaria: The Supreme Court might have to choose between power and principle Marc A. Theissen: Trump is the greatest president in the modern era when it comes to shaping the judiciary Ruth Marcus: Amy Coney Barrett joins a Supreme Court that’s largely out of step with the national consensus E.J. Dionne Jr.: Enlarging the Supreme Court is the only answer to the right’s judicial radicalism David Von Drehle: What Thomas and Alito get wrong in their grumbling about same-sex marriage

Source: WP