The liberal media meltdown about last week’s speech by Supreme Court Justice Samuel Alito is silly and hypocritical. The speech was not only acceptable but insightful and appropriate.
Alito was the featured speaker at the annual national meeting (by video because of the coronavirus) of the Federalist Society, a group of mostly conservative lawyers that sponsors debates and seminars throughout the country. His remarks were quite pointed, perhaps even provocative, but they were well within ethical bounds. The media and leftist politicians, though, reacted as if Alito had thrown a verbal Molotov cocktail into the edifice of judicial propriety. But the media’s vapors are nothing more than gaseous piffle.
Alito’s main point was that the coronavirus pandemic “has resulted in previously unimaginable restrictions on individual liberty.” Secondarily, he put that observation in the context of what already are “emerging trends in the assessment of individual rights,” such that the First Amendment’s free speech and religious liberty rights and the Second Amendment’s right to bear arms seem threatened.
Despite how the media reacted, he was not making a value judgment there. He was actually making a rather uncontroversial, almost inarguable observation.
“I’m not saying anything about the legality of COVID restrictions,” he explained. “Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker. All that I’m saying is this, and I think 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.”
How could anybody argue with that?
Nonetheless, cue the media gnashing of teeth. “In some respects, Alito’s suggestion that government is infringing on Americans’ freedoms echo the anti-mask, anti-restriction Trump talking points of the day,” wrote Joan Biskupic at CNN, who said the overall speech shows Alito “wants the high court to move further and faster on right-wing, anti-regulation interests.” Mark Joseph Stern at Slate called it a “grievance-laden tirade against Democrats, the progressive movement, and the United States’ response to the COVID-19 pandemic” that amounted to “flouting his ethics obligations.” Adam Liptak of the New York Times groused that Alito had countered Chief Justice John Roberts’s “signal that the Supreme Court is apolitical.”
It was the second part of Alito’s speech, though, that really sent liberal feathers flying. In it, he detailed a growing list, both in court cases and in the broader culture, of examples of what he described as “religious liberty … fast becoming a disfavored right,” while “freedom of speech is also in danger.” Clearly, he laments these developments, along with what he also sees as attacks on the Second Amendment.
The liberal critics all acted as if Alito were unethically prejudging ongoing cases. This is nonsense. In each circumstance, he merely elaborated on decisions or opinions he already had written or joined. As numerous conservative analysts have noted, this sort of commentary on prior legal positions is hardly unprecedented behavior by justices.
The late justice Ruth Bader Ginsburg had a habit of making much more political pronouncements, even without sticking to her earlier writings. Yet when, in 2016, she repeatedly blasted then-presidential candidate Donald Trump, neither the media nor liberal legal activists were outraged at the politicization of the court. Witness Erwin Chemerinsky, the Berkeley Law School dean, who three years ago was named the most influential person in U.S. legal education, wrote a New York Times column arguing that it was “a very good development” when Ginsburg pilloried Trump because (per the headline) “justices have free-speech rights, too.” Now, although Alito’s remarks were less directly political, Chemerinsky moans that he “cannot think of any speech like this one that discussed so many issues and in a clearly ideological, partisan way.”
Chemerinsky’s double standard here is breathtaking.
But Alito is right. The Left has spent more than a decade belittling the free exercise of religion and claiming that speech rights are relative — or, as now-Justice Elena Kagan once put it, that they are sometimes a “favor” to be doled out at the government’s discretion. One need not take Alito’s position that this is an awful trend (although I think it is) to acknowledge as simple reality that, in just a quarter century, the nearly universal support for religious liberty has drastically eroded — so much, indeed, that the Left now would force Catholic nuns to close down free homes for the impoverished elderly unless they provide abortion coverage to their employees.
There is nothing wrong, indeed everything appropriate, with Alito solemnly noting these legal and cultural developments.
