Posted on Friday, November 13th, 2020 at 1:32 pm by Kalvis Golde
Judge Samuel Alito informed the Federal Society on Thursday evening that two constitutional protection provisions – the right to freedom of worship under the first amendment and the right to take over arms under the second amendment – are rapidly becoming second-class freedoms. Alito’s keynote address at the group’s 2020 National Convention was the first public appearance by a Supreme Court judge (aside from the court’s oral arguments over the phone) since the election.
Alito spoke to a virtual audience over a video and started on a lighter note. He urged attendees who had had “a glass or two of wine” at previous personal conventions prior to the keynote address to have a drink of their choice. He also invited all of the critics to toss “rotten tomatoes” what they want: “They will only mess up your own screen.”
Alito’s tone quickly sobered up. In one topic of his presentation, he quoted Justice Elena Kagan, who said during her dean at a Federalist Society event at Harvard Law School, “I love the Federalist Society … but you are not my people. “Alito said the point was to highlight the cultivation of spaces by the conservative organization that are tolerant of opposing viewpoints. An acceptance that he considers “now in short supply”.
Alito turned to justice from law schools, criticizing a measure proposed last year that would have prohibited federal judges from maintaining membership in ideological groups such as the Federalist Society. “We should all thank the 200 federal judges who signed a letter in which they spoke out successfully against this measure,” urged Alito, calling these judges “defenders of freedom of speech”.
The COVID-19 pandemic was the subtext of this year’s conference. Alito used it as a lens for his speech. “What has [the pandemic] intended for the rule of law? “He asked. Alito stressed that he” does not reduce the public health threat posed by the virus or the “legality of COVID restrictions”, arguing that the pandemic “has resulted in previously unimaginable restrictions on individual freedom”.
Take the plight of the Calvary Chapel just outside Carson City, Nevada, suggested Alito. The Church unsuccessfully petitioned the Supreme Court this summer to allow its services to expand in the face of an ordinance from Governor Steve Sisolak (D) that limited religious gatherings to 50 and allowed casinos to open 50% of their cases work capacity. Alito denied the chapel’s petition, claiming that the court had “allowed it [religious] Face Discrimination ”from a governor who chose to turn to the“ biggest industry ”of his state.
The Nevada case suggests a bigger trend, Alito said, “The dominance of legislation by executive fiat, not legislation.” Alito cautioned policymakers who are believed to be “implementing expertise-based guidelines … in its purest form, scientific expertise” and warned that the inflation of executive power in the face of the crisis opens the door to abuse of anchored freedoms.
For Alito, religious freedom is the most vulnerable. “Freedom of religion,” complained Alito, “is quickly becoming an unfavorable right.” The prime example of this displeasure in the eyes of the judiciary was the Employment Division’s 1990 court ruling against Smith, authored by Justice Antonin Scalia, which “severely restricted” freedom of exercise by stating that religious groups normally did Exceptions to neutral, generally applicable laws have no claim to belief. Alito praised Congress for having passed the 1993 Law Restoring Religious Freedom, with near-unanimous support, to counteract precisely that decision. The Supreme Court is considering whether Smith should override this term in Fulton v City of Philadelphia. And on the afternoon of Alito’s speech, the Catholic Diocese in Brooklyn asked the court for emergency aid from New York’s coronavirus regulations, similar to those previously requested by Calvary Chapel in Nevada.
“Whether our society will be inclusive enough to tolerate people with unpopular religious beliefs,” said Alito, is the question we are now facing. He listed a number of recent examples filed in the Supreme Court, from the “protracted campaign against the little sisters of the poor” to the backlash against a Colorado baker who refused to serve a wedding cake to a same-sex couple put. By order of a federal judge blocking a federal ordinance during the pandemic requiring patients to visit a doctor’s office in person to receive a pill that is used to induce an abortion. In fact, Alito claimed the situation was so dire that students, professors and clerks today “cannot say that marriage is a union between a man and a woman”. The culture of censorship, he believes, “shouldn’t have come as a surprise” following the 2015 Obergefell Supreme Court decision against Hodges, which imposed state bans on same-sex marriages.
Religion wasn’t the only concern of Alito’s concern. “The ultimate second-class right in the minds of some is the second change,” the judiciary said. Looking at a recent tenure over gun restrictions in New York City, Alito highlighted a letter from five Democratic Senators indicating that the court’s decision to take the case was evidence of his arrest by right-wing monetary interests and with a “restructuring” threatened the court. The judges voted to dismiss the case instead of deciding on merit. Although he “did not suggest that the court’s decision was influenced by threats from the senators,” Alito “was concerned that it might be seen that way by the senators and others who seek to” harass “the judges.” The mandate of the Senator was exceptional, “Alito continued.” It was a violation of the Constitution and the rule of law.
Alito concluded with a tribute to two judges. The first was Scalia, a founder of the Federal Society and a pioneer of the legal philosophy of originalism (interpreting the Constitution as it was intended at the time of its drafting) and textualism (interpreting the laws from their written text alone). The second was Kagan, whose statements that “we are all textualists now” and “we are all originalists now” signaled to Alito the profound influence of Scalia’s jurisprudence.
Alito warned whether he was referring to decisions in the penumbra of the pandemic or other cases from this past term:[w]We saw the emergence of … erroneous aberrations ”from Scalia’s theories. The fight against these aberrations is not only for the judges. “In the end, there is only so much the judiciary can do to uphold our constitution,” said Alito. “Standing up for our freedom” is a task for “all Americans”.
Kalvis Golde, at Federalist Society Congress, Alito says religious freedom and gun ownership are under attack.
SCOTUSblog (November 13, 2020, 1:32 pm), https://www.scotusblog.com/2020/11/at-federalist-society-convention-alito-says-religious-liberty-gun-ownership-are-under – Attack/