Mark Joseph Stern speaks to a remarkable speech delivered by Associate Justice Alito, appointed by former President George W. Bush, to the Federalist Society:
On Thursday night, Justice Sam Alito delivered the keynote address at this year’s all-virtual Federalist Society National Lawyers Convention. The Federalist Society, a well-funded network of conservative attorneys, has come under unusual scrutiny after Donald Trump elevated scores of its members to the federal judiciary. Its leaders insist that it is a mere debate club, a nonpartisan forum for the exchange of legal ideas. But Alito abandoned any pretense of impartiality in his speech, a grievance-laden tirade against Democrats, the progressive movement, and the United States’ response to the COVID-19 pandemic. Alito’s targets included COVID-related restrictions, same-sex marriage, abortion, Plan B, the contraceptive mandate, LGBTQ nondiscrimination laws, and five sitting Democratic senators.
Ironically, Alito began his prerecorded address by condemning an effort by the U.S. Judicial Conference to forbid federal judges from being members of the Federalist Society. He then praised, by name, the four judges who spearheaded a successful effort to defeat the ban—or, as Alito put it, who “stood up to an attempt to hobble the debate that the Federalist Society fosters.” Alito warned that law school students who are members of the Federalist Society tell him they “face harassment and retaliation if they say anything that departs from the law school orthodoxy.”
These comments revealed early on that Alito would not be abiding by the usual ethics rules, which require judges to remain impartial and avoid any appearance of bias. The rest of his speech served as a burn book for many cases he has participated in, particularly those in which he dissented. Remarkably, Alito did not just grouse about the outcome of certain cases, but the political context of those decisions, and the broader cultural and political forces behind them. Although the justice accused several Democratic senators of being unprofessional, he himself defied the basic principles of judicial conduct. [Slate]
A faux-pas by Alito? Or could this signal something more important?
A retirement from SCOTUS in, say, the next week or two?
It’s not entirely insensible. Justice Alito is 70. Assuming Biden holds true to his word in 2024 to not run again, we may see a President Kamala Harris from 2024 to 2032, which would mean , if Alito is a team player for the conservatives, he would still be holding on grimly at age 82.
Or he can retire now and let Trump nominate a far younger conservative.
That begs the question of why Justices Thomas (age 72) and Alito are still in their seats. Partly, that can be attributed to the right-wing epistemic bubble that insisted President Trump couldn’t lose. Today, Arizona and Georgia have been called for Biden, and if I think Georgia’s call is premature, that’s really neither here nor there. Biden has thankfully won and, regardless of my disappointment in so many of my fellow Americans, firmly planted his boot up Trump’s ass.
We can also attribute their continued presence in their pleasure in doing the work and occupying preeminent positions in society. I don’t begrudge it, unlike Erick Erickson. No doubt they worked long and hard to achieve their positions.
But Alito and Thomas now face at least four years of a Democratic President, and a good chance of twelve years of Democratic occupation of the White House – and I suspect that the very survival of the Republican Party in its current form during that time is up for debate. If Thomas and Alito leave their positions during that period, the liberal fear of far-right dominance of SCOTUS for decades will suddenly transform into a liberal majority on the Court.
So this could be a signal that Alito is about to retire. If he does not, he may find himself being asked to recuse on cases that can be plausibly linked to this rhetoric, and that is embarrassment in itself – a self-inflicted wound, as it were.
Who’s up for some more SCOTUS drama? Quite frankly, I’ll take a skip. By the time a nomination could be made and the requisite votes taken, Senator-elect Kelly of Arizona, a Democrat, would have replaced Republican Senator McSally, but that’s not enough.
And, finally, one of his comments show how much he’s bought into conservative anti-expert sentiment:
For instance, the justice criticized state governors who’ve issued strict lockdown orders in response to COVID-19, referring to specific cases that came before the court. Alito said these “sweeping” and “previously unimaginable restrictions on individual liberty” have served as a “constitutional stress test,” with ominous results. The government’s response to COVID-19, Alito continued, has “highlighted disturbing trends that were already present before the virus struck.” He complained about lawmaking by an “elite group of appointed experts,” citing not just COVID rules but the entire regulatory framework of the federal government.
The last remark is a classic far-right whine, and is quite ironic since Alito himself qualifies as the worst sort of expert: someone who tells other people how to act.
