Alito, who rarely speaks in public but has a way of going viral when he does, wants the high court to move further and faster on right-wing, anti-regulation interests, particularly for religion in a time of Covid, in the face of LGBTQ concerns, and when people simply, as he says, want to describe marriage as only between a man and a woman.
Alito, a 70-year-old appointee of President George W. Bush, has become an infuriated dissenter, even as his side of the bench has become fortified with appointments and will likely see greater majorities ahead.
“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito asserted Thursday, highlighting the consequences for “worship services, churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur.”
Alito said he was not minimizing the death toll of coronavirus nor commenting on “the legality” of pandemic-era rules, yet he emphasized, “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
“The Covid crisis has served as a sort of constitutional stress test and in doing so, it has highlighted disturbing trends that were already present before the virus struck.” He referred to agency regulation and a general “dominance of lawmaking by executive fiat rather than legislation.”
The gnashing ideological tone of Alito’s speech in such a prominent forum was striking and immediately ignited social-media commentary. Supreme Court justices have generally tried to recede from the hyper-partisanship throughout Washington today. 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.
Moreover, conservatism on the Supreme Court is in ascendance, along with tougher scrutiny for government regulation. The Supreme Court is now dominated by a 6-3 conservative-liberal majority, following the death of Ruth Bader Ginsburg and succession of Amy Coney Barrett. Her appointment marked the third for President Donald Trump on the nine-member bench.
Part of Alito’s frustration may flow from a view that his conservative brethren have failed to be sufficiently vigilant. One his fiercest dissenting opinions last session came in response to a majority opinion by fellow conservative Justice Neil Gorsuch, joined by Chief Justice John Roberts and four liberal justices extending federal anti-discrimination law to LGBTQ workers.
He assaulted Gorsuch’s legal reasoning, likening it to “a pirate ship” flying under a false flag and decried the opinions assertion of a modest move. “If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold,” Alito wrote.
A man with a shy nature who appears stiff — as President Bush himself described in his memoir — Alito now exhibits no reserve as he blasts the “intolerance” and “intimidation” of religious views. As his speech demonstrated, he also believes abortion rights wrongly win the day and liberals try to bully the justices to preserve gun regulations.
Alito has moved beyond the mere mouthing of “not true,” in the 2010 memorable State of the Union moment that went viral on social media as he tried to counter President Barack Obama’s criticism of the Citizens United campaign finance decision.
Alito, a New Jersey native who served as a federal prosecutor and US appeals court judge before taking his high court seat in 2006, usually cuts a low profile even with his most consequential votes.
He succeeded centrist conservative Justice Sandra Day O’Connor, and his new fifth vote on the right immediately meant more conservative high court decisions on reproductive rights, job discrimination measures and campaign finance regulations.
Chief Justice Roberts often assigned Alito the majority opinion in 5-4 disputes, for example, over contentious labor protections and religious freedom. He could speak for a fivesome that included now-retired centrist-conservative Justice Anthony Kennedy and Justice Clarence Thomas at the rightward pole.
As the court has become more conservative with Trump appointments, Alito has aligned more with Thomas in high-profile cases. Many revolve around social policy dilemmas, but Alito and Thomas also separated themselves from the seven-justice majority that compromised last July for resolution of two Trump document subpoena disputes.
In October, Alito joined Thomas in a case involving a Kentucky municipal clerk who refused to give gay couples marriage licenses. The justices contended religious liberty was being compromised by the court’s 2015 decision, Obergefell v. Hodges, that found a constitutional right to same-sex marriage.
In a Covid-related conflict, Alito drew Thomas, as well as Justice Brett Kavanaugh, as he wrote a dissenting opinion last summer when the majority rejected an appeal from a Nevada church challenging a 50-percent limit on attendance during the pandemic.
Referring to varying state rules for churches and casinos, Alito wrote that the “Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance.”
In his keynote address to the Federalist Society, Alito invoked that case and other Covid-related dilemmas. Equally prominent was his commentary related to gay rights.
At one point, he riffed on the late comedian George Carlin’s “seven dirty words” routine. Calling them a “quaint relic” of another time, Alito said today’s disfavored words, on campuses and in corporations, are of a new variety.
They are also too abundant to list, he said. Still, the jurist who continues to protest the court’s decision affirming same-sex marriage offered this example:
“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,” said Alito, “it’s considered bigotry.”