An inescapable risk in writing about current events is that they have the tendency to swiftly overtake the last thing you wrote. On Thursday afternoon, I filed an article explaining why the Supreme Court will likely take a sharp right turn after President-elect Joe Biden’s victory last week but noted that it still had the option to take a less aggressive tack. “If the justices wanted it, the Supreme Court could act as a force for American social and political cohesion instead of a factor in its destabilization,” I wrote. “It could avoid groundbreaking rulings on the nation’s cultural fault lines, at least for a few years, and take a wait-and-see approach to a president who is calling for reconciliation instead of revanchism.”
That article was published in the early hours of Friday morning. In the intervening hours, Justice Samuel Alito addressed the Federalist Society’s annual convention. Alito, one of the court’s most conservative conservatives, did not sound interested in bridging political divides or promoting social cohesion. He instead aired a long list of grievances about the court’s recent rulings to a receptive audience and suggested that the court would be more aggressive in fighting back against this tide in the future. So much for détente.
What makes Alito’s speech so remarkable is the combination of message and venue. In his eyes, conservatives are fighting a rising tide of religious and ideological persecution that threatens to cast them to the outer fringes of American society. He declared this in a speech to a Federalist Society convention where the conservative and libertarian legal elite gather in D.C. to hobnob at black-tie dinners in non-pandemic years. That movement just spent four years in the ascendance, leaving a multigeneration imprint on the federal courts, including a six-justice majority on the Supreme Court where Alito sits. But for Alito, “religious freedom” and “freedom of speech” sound less like legal principles and more like vehicles to secure a fading cultural dominance.
Consider how he approaches the effects of the Supreme Court’s ruling in Obergefell v. Hodges in 2015, which recognized an equal right to civil marriage for same-sex couples. He did not question the legal reasoning behind the decision in his Thursday address, nor did he call for it to be overturned outright. He instead focused on Obergefell’s impact on those who disagreed with it. “You can’t say that marriage is the union between one man and one woman,” he claimed. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry. That this would happen after our decision in Obergefell should not have come as a surprise.” He went on:
Yes, the opinion of the court included words meant to calm the fears of those who cling to traditional views on marriage. But I could say and so did the other justices in dissent, where the decision would lead. I wrote the following: “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 of us in public, they will risk being labeled as bigots, and treated as such by governments, employers, and schools.” That is just what is coming to pass. One of the great challenges for the Supreme Court going forward will be to protect freedom of speech. Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second tier constitutional right.
While being called a bigot is undoubtedly painful and uncomfortable, it’s probably not as painful and uncomfortable as facing bigotry itself. More to the point, however, calling someone a bigot is also free speech. In either event, it does not bode well for how he would decide cases involving anti-discrimination protections for gay and transgender Americans. It also suggests that a strict adherence to textualism wasn’t what really drove his dissenting opinion in Bostock v. Clayton County earlier this year.
Alito described other perceived threats to liberty. He complained about the court’s recent approach to Second Amendment cases that had rendered it a “second-tier” constitutional right. He derided the legal underpinnings of modern federal regulatory agencies, which he described as “lawmaking by executive fiat rather than legislation,” and foreshadowed an imminent judicial war on the precedents that made agencies like the Environmental Protection Agency possible. In his eyes, the state and federal efforts to control the coronavirus’s spread marked the culmination of this strain of progressive governance. “The pandemic has resulted in previously unimaginable restrictions on individual liberty,” he noted without regard for hyperbole.
Much of Alito’s criticism of recent public-health measures centered on Calvary Chapel v. Sisolak, a case brought by a rural Nevada church that challenged the occupancy limits that the state temporarily mandated in an effort to stem the spread of Covid-19. Those orders allowed no more than 50 people at houses of worship, while also allowing casinos and certain other businesses to allow no more than 50 percent occupancy. Nevada argued that it had discretion to tailor its public-health measures to different activities and businesses based on how they operated; the Supreme Court apparently agreed and quietly rejected the church’s request to block the order over the summer.
Alito, who dissented from that move, renewed his objections on Thursday night. “Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship,” he claimed. “But the court nevertheless deferred to the governor’s judgment, which just so happened to favor the state’s biggest industry and the many voters it employs.” The imagery of Las Vegas gamblers cavorting with the state’s blessing while churchgoers are denied the right to worship is an evocative one. It is also somewhat misleading. The occupancy restrictions for churches also applied to similar secular gatherings like movie theaters, concerts, and sporting events. Nevada also placed no restrictions on outdoor worship services, even as it forbade outdoor concerts and other forms of live entertainment, and even encouraged the church to conduct multiple indoor services to accommodate Calvary Chapel’s 90-person congregation.
To further bolster his case of liberal persecution, Alito cited an infamous May 2016 blog post by Harvard University law professor Mark Tushnet. It wrongly anticipated a liberal majority on the Supreme Court after the 2016 election and called for liberals to embrace a sort of victor’s-justice strategy against those who “lost” the culture wars, noting that “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.” Tushnet’s post was not influential in liberal or left-leaning circles. But it electrified the conservative legal community and became a touchstone for their fears and paranoia, which persisted even in their Trump-era apogee. “Is our country going to follow that course?” Alito said, referring to Tushnet’s post. “To quote a popular Nobel laureate: It’s not dark yet, but it’s getting there.”
What’s telling in this narrative is what Alito left out. Even before its membership changes over the past four years, the Supreme Court of the Roberts era has been extraordinarily favorable to religious-freedom claims. In just the last term, the justices struck down Blaine amendments in state constitutions in Espinoza v. Montana Department of Revenue, expanded religious schools’ protections from employment-discrimination lawsuits in Our Lady of Guadalupe School v. Morrissey-Berru, and upheld the Trump administration’s religious exemptions from the Affordable Care Act’s contraceptive mandate in Little Sisters of the Poor v. Pennsylvania. Indeed, the only area where the court regularly falls short on religious freedom is when Muslims are involved, as shown by its carte-blanche ruling on the Muslim ban in Trump v. Hawaii and its indefensible behavior in Dunn v. Ray. Alito was part of the majority in both of those cases.
To Alito, even those victories still represent a defeat of sorts. He made a passing reference to one of those cases during Thursday’s speech. “Last spring, the Little Sisters won their most recent battle in the Supreme Court, I should add by a vote of seven to two, but the case was sent back to the Court of Appeals,” he told the audience. “And the Little Sisters’ legal fight goes on and on.” This is true of many cases heard by the high court. He criticized a Colorado official for inflammatory language used against the Christian baker in the Masterpiece Cakeshop case, but did not mention that the court handed the baker a narrow victory because of that language.
When Alito lamented that the “tolerance for opposing views is now in short supply” in the American legal community, he cited a proposed ethics-rule change that would have barred federal judges from being members of the Federalist Society or the American Constitution Society. The proposal was abandoned after it drew criticism from a broad swath of the federal judiciary, which would suggest that tolerance for opposing views remains fairly robust. Alito refused to strike a triumphal note about its defeat; he merely claimed that it had been put “on hold.”
The problem, in Alito’s eyes, is that these questions are being debated at all. He is not just looking for a clear legal or constitutional process by which religious-freedom claims can be adjudicated, even if that process strongly favors those claims. And for all his pieties towards “tolerance for opposing views” and “rational civil speech on important subjects” to an ideologically friendly audience, his address suggested that what he really wants is unquestioned social and cultural hegemony for his particular vision of American life. Alito is just one justice on the Supreme Court, and he is powerless unless four of his colleagues agree with him. We’ll find out soon whether they do.