WASHINGTON — In an unusually caustic and politically tinged speech, Justice Samuel A. Alito Jr. told a conservative legal group that liberals posed a growing threat to religious liberty and free speech.
The remarks, made at the Federalist Society’s annual convention Thursday night, mirrored statements Justice Alito has made in his judicial opinions, which have lately been marked by bitterness and grievance even as the court has been moving to the right. While Chief Justice John G. Roberts Jr. has tried to signal that the Supreme Court is apolitical, Justice Alito’s comments sent a different message
Coming as they did just weeks after Justice Amy Coney Barrett succeeded Justice Ruth Bader Ginsburg, giving conservatives a 6 to 3 majority, the remarks alarmed some on the left. But legal experts said there were few clear lines governing what justices may say off the bench.
“There’s a difference between what a justice can do and what a justice would be well advised to do,” said Vikram D. Amar, the dean of the University of Illinois College of Law. “I tend to think that John Roberts has a much better instinct toward circumspection.”
“Other than an ethical line about prejudging cases and avoiding the appearance of bias,” Professor Amar said, “it’s a matter of what you think a good judge should do and the image a judge should cultivate.”
Still, it was jarring, some legal commentators said, to hear political sentiments, even ones echoing judicial opinions, during a webcast aimed at conservative lawyers.
“Justice Alito’s speech Thursday was more befitting a Trump rally than a legal society,” said Gabe Roth, the executive director of Fix the Court, a nonprofit group that has called for stricter ethics rules for the Supreme Court.
Others said it was unexceptional for justices to describe positions they had already taken in their judicial work.
“It’s one thing for a justice to speak publicly about an open issue on which the justice hasn’t yet ruled,” Ed Whelan, the president of the Ethics and Public Policy Center, wrote on National Review’s Bench Memos blog. “It’s a very different — and much less remarkable — thing for a justice to restate positions that he has already formally adopted.”
Mr. Whelan noted that Justice Ginsburg had criticized President Trump in an interview during the 2016 campaign for refusing to release his tax returns and went on to sit on cases concerning their disclosure. Justice Antonin Scalia, by contrast, recused himself from a case the Pledge of Allegiance after discussing the case in public.
Mr. Trump has repeatedly credited the Federalist Society with helping draw up his lists of potential nominees to the Supreme Court. All three of his appointees — Justices Barrett, Neil M. Gorsuch and Brett M. Kavanaugh — appeared on those lists.
Public appearances by justices before friendly audiences are commonplace, and several of the court’s more liberal justices have appeared before the American Constitution Society, a liberal group. But the comments they make on such occasions are generally anodyne.
At last year’s Federalist Society convention, Justice Kavanaugh’s keynote speech largely consisted of expressions of gratitude to people who had helped him weather his confirmation hearings.
Justice Alito’s comments were more pointed, and they were consistent with his sense that his views have not been given the respect they deserve. He felt bruised by some of the questions at his confirmation hearings in 2006, after a career in the Justice Department and on the federal appeals court in Philadelphia.
He was not pleased when President Barack Obama criticized the court’s Citizens United campaign finance decision at the State of the Union address in 2010 with six justices present. Mr. Obama said the decision had “reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”
Justice Alito responded by mouthing the words “not true.” He has not attended another State of the Union address.
On Thursday, Justice Alito focused on the effects of the coronavirus, which he said “has resulted in previously unimaginable restrictions on individual liberty.”
“I am not diminishing the severity of the virus’s threat to public health,” he said. “All that I’m saying is this, and I think that it is an indisputable statement of fact: We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
Justice Alito was particularly critical of a ruling from the Supreme Court in July that rejected a Nevada church’s challenge to state restrictions on attendance at religious services.
The state treated houses of worship less favorably than it did casinos, he said. Casinos were limited to 50 percent of their fire-code capacities, while houses of worship were subject to a flat 50-person limit.
“Deciding whether to allow this disparate treatment should not have been a very tough call,” Justice Alito said. “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.”
The ruling was decided by a 5-to-4 vote, with Justice Ginsburg in the majority. Her replacement by Justice Barrett may alter the balance on the court in similar cases, including a pending one from Brooklyn.
The Nevada decision was based in part on a 1905 Supreme Court decision concerning an outbreak of smallpox in Cambridge, Mass., the home of Harvard University.
“Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world,” said Justice Alito, who attended Princeton and Yale Law School. “It would be good if what originates in Cambridge stayed in Cambridge.”
Justice Alito went on to quote, with disdain, Mark Tushnet, a Harvard Law School professor.
The professor, Justice Alito said, had written: “The culture wars are over; they lost, we won.”
This was evidence, Justice Alito said, of liberal orthodoxy.
“For many today, religious liberty is not a cherished freedom,” he said. “It’s often just an excuse for bigotry, and it can’t be tolerated.”
In an interview on Friday, Professor Tushnet said Justice Alito’s criticism of the statements he made in a blog post four years ago indicated that the points he made were correct.
“The very intensity of Justice Alito’s remarks seems to me to confirm my judgment about who won the culture wars,” Professor Tushnet said. “His are in fact the observations of a person who hasn’t come to grips with the fact that he’s been on the losing side of many culture war issues.”
In his remarks on Thursday, Justice Alito said the right to free speech was under threat, too.
“Tolerance for opposing views is now in short supply at many law schools and in the broader academic community,” he said.
He recalled the days of the comedian George Carlin’s “seven dirty words” monologue, which had been the subject of a 1978 Supreme Court decision allowing the government to restrict the use of vulgar language on broadcast television.
“Today you can see shows on your TV screen in which the dialogue appears at times to consist almost entirely of those words,” Justice Alito said. “Carlin’s list seems like a quaint relic.”
“But it would be easy to put together a new list called ‘things you can’t say if you are a student or a professor at a college or university or an employee of many big corporations.’ And there wouldn’t be just seven items on that list,” he said. “Seventy times seven would be closer to the mark.”
A prime example, he said, was opposition to same-sex marriage.
“You can’t say that marriage is a union between one man and one woman,” Justice Alito said. “Until very recently that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
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