Courts

Let's Break Down Every Utterly Bonkers Thing Justice Alito Said Last Night

This is a string of very, very troubling thoughts.

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(Photo by Chip Somodevilla/Getty Images)

Samuel Alito became infamous for making a performative scene of saying “not true” when Barack Obama explained the very much “completely true” history of the last century of campaign finance jurisprudence. Then he expressed his commitment to precedence by publicly outlining the exact test case he wanted to overturn a four-decade ruling and then kicked public school teachers in the teeth. Honestly, there have been so many markers that there shouldn’t be any remaining holdouts thinking that this guy is anything but a MAGA bro in a robe.

But if all that wasn’t enough to drive the message home, he spoke virtually at the annual Federalist Society hoedown and it was… something else.

Alito begins with an extended joke about inserting virtual baseball fans into the speech and people throwing tomatoes at their computer screens while he talks and succeeds in proving that he lacks every bit of the charisma that made Antonin Scalia and Ruth Bader Ginsburg legends. Say what you will about the wisdom of having celebrity jurists, but it’s clear that Sammy here is not going to be one of them.

Then Alito delivers the boilerplate “FedSoc isn’t an advocacy group” statement required for tax purposes. It was always a disingenuous lie, but after Leonard Leo spent four years packing the judiciary with every ABA non-qualified wingnut that ever attended a Federalist Society luncheon — catered by Chick-fil-A, obviously — it’s reached Big Brother levels of brazenness.

I’m now going to say something that I hope will not be twisted or misunderstood. But I have spent more than 20 years in Washington so I’m not overly optimistic.

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This sounds promising!

The pandemic has resulted in previously unimaginable restrictions on individual liberty.

How have we let people claim the mantle “Originalists” when they have no conception of history before the Reagan administration? America has ordered lockdowns and quarantines since colonial times and courts have routinely upheld the right to do so. And the United States is a festering disaster zone right now because it hasn’t even begun to exercise the scope of its entirely imaginable and historical powers. The Supreme Court has upheld mandatory vaccinations to fight outbreaks and this motherfucker is complaining about having to eat take-out?!?

All that I’m saying is this and I think it is an indisputable statement of fact.

Spoiler alert, it will not be.

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We have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020.

America kept Japanese-Americans in concentration camps for four years! Slavery existed! This jackass can’t go to Walmart without a mask and it’s the greatest assault on liberty ever. Sam Alito was born in 1950 which says a ton. The utterly coddled Boomers would wither if they had to accept sugar rations like the generation before did. Their parents couldn’t choose what to make for their own dinners so America could defeat the Nazis, but this guy can’t get a booth at The Capital Grille for a month so we need to realize how serious this is!

In fairness, he doesn’t say these aren’t legal — because he can’t — but does spin COVID into a Chevron argument which is absolutely not where I thought this jag was going. Alito complains that the pandemic is showing that the real danger is how much power legislatures have ceded to the executive branch. Now imagine if any of those executives actually used any of those powers!

He does, at least, know that Jacobson v. Massachusetts exists:

I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world.

He’s got Yalie jokes! But not so much a coherent argument about why pandemic restrictions aren’t good.

Then he shifts to explaining how nice the Little Sisters of the Poor are and how the importance of religious freedom. Frankly, these contraception coverage cases make the excellent point that health care shouldn’t be up to employers and the only just, effective, and fully constitutional response is a full government health system, but it will not shock you that this is not Alito’s take away. Indeed, he pivots to complaining that pharmacies even have to carry contraception.

This guy is coming for Griswold, folks. When Amy Coney Barrett joined this bench, blowing up Roe became the floor, not the ceiling.

Masterpiece Cakeshop rears its head as Alito explains that celebrity chefs offered to make the couple’s cake so there’s no reason for discrimination laws. Yeah, and Homer Plessy could just sit in the other car, but that wasn’t cool either. Even if one accepted Alito’s facile arguments, he has no answer for what happens when every baker chooses not to serve people. His standard is not “religious liberty wins if there is a separate but equal alternative,” he’s using the separate but equal alternative to demean the plaintiffs’ argument but fundamentally it’s not necessary for his conception of the First Amendment.

You can’t say that marriage is a union between one man and one woman. Until very recently that’s what the vast majority of Americans thought. Now it’s considered bigotry.

No, it was always bigotry. Prejudice doesn’t start and stop based on polling. In fact, that the majority quashed the rights of others is kind of the whole point of bigotry. Then he goes off on Obergefell and quotes his own dissent:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

The insane thing about choosing to quote this passage specifically is that it makes zero mention of same-sex marriage and could just as easily be dropped into the Brown v. Board dissent that Alito would have written if only he’d had the chance. Honestly, if you read his dissent and ever tried to offer a “oh, I don’t think he meant it that way,” trust that this speech makes clear that he absolutely means it that way.

Of course the ultimate second-tier constitutional right in the minds of some is the Second Amendment right to keep and bear arms.

Hi, just a reminder that this is not what the Second Amendment says. The Second Amendment is “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” There’s a reason why the Framers’ included all that preamble because the right is about states maintaining militias for use against the federal army and not Johnny’s right to carry his AR-15 to the polls. If only there were jurists who cared about the “original public meaning” of things!

Finally, Alito issues his response to all the court reform talk out there:

Let’s go back to some basics. The Supreme Court was created by the Constitution not by Congress.

Sort of! The fact that there will be a Supreme Court is created by the Constitution which then defers to Congress to decide what the Supreme Court looks like. And Congress has taken up that mantle and, after restructuring the Court a few times over the years, settled on the current model. But Alito’s statement is intentionally misleading. To be fair, Alito is criticizing the amicus brief that a group of Senators wrote that did read kind of like a threat to reform the Court unless it made the decision they advanced. And it shouldn’t be a threat used in a given case — it should just be done regardless of any specific opinion. He compares this to a dictator pointing a tank at a courthouse and wow — hyperbole much?

This speech is a journey! And that journey is a terrifying one if you care about women, minorities, LGBTQ folks, or simply not dying of COVID. This is a scary speech coming from a politician.

Coming from a judge, it is downright dangerous.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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