On Thursday night, Justice Sam Alito delivered the keynote address at this year’s all-virtual Federalist Society National Lawyers Convention. The Federalist Society, a well-funded network of conservative attorneys, has come under unusual scrutiny after Donald Trump elevated scores of its members to the federal judiciary. Its leaders insist that it is a mere debate club, a nonpartisan forum for the exchange of legal ideas. But Alito abandoned any pretense of impartiality in his speech, a grievance-laden tirade against Democrats, the progressive movement, and the United States’ response to the COVID-19 pandemic. Alito’s targets included COVID-related restrictions, same-sex marriage, abortion, Plan B, the contraceptive mandate, LGBTQ nondiscrimination laws, and five sitting Democratic senators.
Ironically, Alito began his prerecorded address by condemning an effort by the U.S. Judicial Conference to forbid federal judges from being members of the Federalist Society. He then praised, by name, the four judges who spearheaded a successful effort to defeat the ban—or, as Alito put it, who “stood up to an attempt to hobble the debate that the Federalist Society fosters.” Alito warned that law school students who are members of the Federalist Society tell him they “face harassment and retaliation if they say anything that departs from the law school orthodoxy.”
These comments revealed early on that Alito would not be abiding by the usual ethics rules, which require judges to remain impartial and avoid any appearance of bias. The rest of his speech served as a burn book for many cases he has participated in, particularly those in which he dissented. Remarkably, Alito did not just grouse about the outcome of certain cases, but the political context of those decisions, and the broader cultural and political forces behind them. Although the justice accused several Democratic senators of being unprofessional, he himself defied the basic principles of judicial conduct.
For instance, the justice criticized state governors who’ve issued strict lockdown orders in response to COVID-19, referring to specific cases that came before the court. Alito said these “sweeping” and “previously unimaginable restrictions on individual liberty” have served as a “constitutional stress test,” with ominous results. The government’s response to COVID-19, Alito continued, has “highlighted disturbing trends that were already present before the virus struck.” He complained about lawmaking by an “elite group of appointed experts,” citing not just COVID rules but the entire regulatory framework of the federal government.
Alito also warned of a broader, ongoing assault on religious liberty. “In certain corners,” he alleged, “religious liberty is fast becoming a disfavored right.” Alito condemned the Obama administration’s “ protracted campaign” and “unrelenting attack” against the Little Sisters of the Poor, which refused to submit a form to the federal government opting out of the contraceptive mandate. The group alleged that submitting this notice burdened its religious exercise. Alito also disparaged Washington state for requiring pharmacies to provide emergency contraception—which, he claimed, “destroys an embryo after fertilization.” (That is false.) Finally, Alito rebuked Colorado for attempting to compel Jack Phillips to bake a cake for a same-sex couple.* He noted that the couple was given a free cake and supported by “celebrity chefs.”
The justice then complained that the Supreme Court’s same-sex marriage ruling had crushed the free speech rights of anti-LGBTQ advocates by subjecting them to public criticism:
Finally, Alito took aim at five senators who filed an amicus brief in a Second Amendment case last year. The senators’ brief warned the justices that the court was becoming dangerously political. Alito noted that the senators believed the court might need to be “restructured” to reduce political influence, then told the story of a foreign judge who faced violence if he did not side with the government:
Yet Alito’s speech proved the senators’ point. At least one justice is clearly a bitter partisan out to settle scores with the left. Flouting his ethical obligations, Alito waded into fierce political debates over public health during a pandemic, reproductive rights, LGBTQ equality, and other issues that routinely come before his court. It is wildly inappropriate for a justice to assume the role of Fox News commentators, and unwise in light of progressives’ mounting doubt about the Supreme Court’s legitimacy.
Surely the justice knows all this—and perhaps his speech is really a taunt to the left. There is now a hard-right six-justice majority on the court; Republicans have won their battle for domination of the judiciary. Democrats can grumble, but Alito’s worldview is ascendant. There is nothing the left can currently do to limit his power. Trump stacked the judiciary with judges just like him, who learned from the Federalist Society how to cloak Republican policies in the guise of conservative judicial philosophies.
Alito is notoriously cranky, but he seemed to be in relatively good spirits in Thursday’s address. And why shouldn’t he be? Sure, Trump lost reelection, but the Senate has continued to confirm Federalist Society judges at a record clip. For Sam Alito, the future looks as bright as ever.
Correction, Nov. 13, 2020: This piece originally misidentified Jack Phillips as Jake Phillips.