Thoughts on Samuel Alito’s recent speech to the Federalist Society

Some say Supreme Court justice Samuel Alito got too political in his recent speech to the Federalist Society. Others say his speech merely repeated arguments he has made in formal Supreme Court decisions.

Both sides of this debate are correct.

Watch:

Several of you have asked me to comment on the speech. So here goes:

First, Alito’s lecture defends free and open public discourse. He wants a country in which we respect “rational, civil speech on important subjects even if we do not agree with what the speaker has to say.” I appreciate Alito’s use of the word “rational” here. We should respect free speech that is based on facts, truth, and good science. This kind of speech is essential to the health of the republic, but we are not doing a very good job at supporting it. (Again, I point you to the statement on free speech published recently at Harper’s).

Second, Alito is correct to suggest that “tolerance for opposing views” is in “short supply” in the “broader academic community.” I completely agree with this. Some of us experienced this intolerance over the summer when we dared to suggest that the Society for Historians of the Early American Republic (SHEAR) mishandled a paper presentation by historian Daniel Feller.

Third, Alito argues that the pandemic has “resulted in previously unimaginable restrictions on individual liberty.” It is hard to argue with this as a statement of fact. We have had to curb our liberties in order to stay safe. But unlike Alito, I do not see a major problem with this. I think one can make a strong case from American history that there are times when we have placed duty over liberty and the common good over individual rights. The pandemic is one of those cases.

Fourth, Alito takes a shot at the progressive commitment to “expertise.” He is especially upset with the way governors use executive power to enforce pandemic restrictions that reflect what the scientists (experts) are telling them. If I understand him correctly, he believes that legislative bodies, not governors, should make decisions about COVID-19 restrictions.

Fair enough. But in a pandemic like this one it seems as if governors, in consultation with scientific experts, should be the primary decision makers. I am going to sound like an elite founding father here, but I wonder if we really want legislative assemblies–the people– making decisions in a pandemic, especially if they are not in close contact with experts who know how to handle such situations. If some of these state legislatures got their way back in March and April 2020 it is likely that even more people would have died from this virus. I am thankful for the work of governors such as Andrew Cuomo, Gretchen Whitmer, Mike DeWine, Tom Wolf, and Phil Murphy who are leading their respective states through this major health crisis. Let’s remember that these governors are also elected officials.

Fifth, Alito is worried about the future of religious liberty in the United States. He is right to do so. Alito offers three cases that concern him: Little Sisters of the Poor vs. Pennsylvania; Stormans, Inc. v. Wiesman (Ralph’s Pharmacy); and Masterpiece Cakeshop v. Colorado Civil Rights Commission (Jack Philips).

The Little Sisters of the Poor should be allowed to do whatever they want to do with their healthcare plan. If they refuse to provide contraception to their employees because of deeply-held religious beliefs, they should be permitted to do so under the First Amendment.

I am also sympathetic to Alito’s position (and Clarence Thomas and John Roberts) in the Ralph’s Pharmacy case. If I owned a pharmacy I would have a moral objection, because of my pro-life beliefs, to selling morning-after pills.

What about the Masterpiece Cakeshop Case? (The Court defended cake maker Jack Philips with a 7-2 decision on narrow grounds that did not get to the heart of the real religious liberty issues at stake). For me there seems to be a difference between selling an abortifacient and baking a cake for a wedding. But I realize other Christians might think differently and I want to respect their right to do that.

All of Alito’s religious liberty arguments in his Federalist Society speech make sense to me. I appreciate how he understands these issues in the context of efforts to create a more “inclusive” or pluralist society. John Inazu’s Confident Pluralism is the best book I have read on the subject. In terms of legislation, I recommend taking a look at the Fairness for All Act.

Sixth, Alito connects his thoughts on COVID-19 restrictions to his thoughts on religious liberty issues. Over the last several months religious conservatives have complained that Nevada allowed casinos to stay open, but limited the number of people permitted in churches. I am once again with Alito here. Why were casinos privileged over churches? I would argue, contra John MacArthur, that both should have been closed or restricted.

Seventh, Alito argues that COVID-19 restrictions have curbed free speech. He predicts that anyone who says “marriage is a union between one man and one woman” will soon be labeled a bigot. I am not aware of cases where the free speech of someone who believes in traditional marriage has been threatened, but I am sure there are examples out there. (It is also unclear how Alito’s concerns about this issue are related to COVID-19). I hope Alito’s prediction here is wrong, but I don’t think it is.

It is worth noting that not all people who believe in traditional marriage are homophobic or oppose the legality of LGBTQ marriages. (In the same way, people can be pro-life on abortion and still care about women’s health or even oppose the overturning of Roe v. Wade). Most defenders of traditional marriage want society to respect the rights of institutions–churches and schools come immediately to mind–whose members have deeply-held religious views on the matter.

All of this makes me wonder if someone who upholds a traditional view of marriage could land could land a job at public or non-religious college or university today. Probably not. I also imagine that my general support of Alito in this post would eliminate me from consideration for such a position at a college or university. I made a similar suggestion in this 2016 piece at Aeon. But I digress…

In the end, I am persuaded by much, but not all, of what Alito had to say in this speech.