Sunday, November 15, 2020
Many are using their time to contain irrational fears, dispel misconceptions stoked through the presidential campaign, and bridge the national political divide. Calming fears seems to be the most humane approach to problems in this unprecedented time. Then there is Justice Alito who has no inclination toward constraint. In a speech to attendees of the Federalist Society’s Virtual Convention, Justice Alito fueled conservative obsession with viewing themselves as constitutional victims. Many have reported on Justice Alito's remarks. As readers may be aware, Justice Alito proclaimed that first amendment rights of free exercise of religion and the second amendment right to bear arms are becoming "second class liberties". Most observers have focused on two aspectsof the speech. The first is that it is highly irregular for a sitting justice to discuss matters that are likely to be heard by the court. Also, does the substance of his speech raise the specter of recusal? Although recusal is unlikely in most Supreme Court cases (a la Cheney and Justice Scalia) Justice Alito's biases and prejudgment of issues parts ways with the usual discretion of members of the US Supreme Court.
Aside from the obvious, that Justice Alito is likely to be called to the principal's office this week, another aspect of this spectacle needs addressing. Justice Alito has done what so many Americans have done so well recently. He has made himself, and by extension Federalist Society members, victims of perceived grievances. Justice Alito is highly educated, is in a leadership role within our governmental systems, and presumably is aware of how to use words that can convey concerns without inciting alarm in the targeted audience. Justice Alito set his years of training aside and joined with people of privilege in sharing a view that their religious values and other liberties are under attack. Religious organizations have been unusually successful before the Supreme Court over the last decade. Beginning with Hobby Lobby, small businesses have obtained religious exemptions from providing birth control. Successive victories include Little Sisters of the Poor as well as the broad application of a "ministerial exception" granted to a religious school that engaged in what otherwise would be employment discrimination. Yet- those victories were ignored by the Justice, who instead chose to discuss a Nevada case that held that a regulation permitting casinos to operate during COVID-19 at 50% capacity while limiting church services to 50 people was not an unconstitutional restriction on practice of religion. While some might disagree with the decision, most accepted the restircitons as necessary under extraordinary circumstances. That is true, unless one views any case not finding on behalf of a religious institution as religious persecution. Justice Alito's behavior was not only inappropriate from a judicial perspective, it showed him to be an angry individual who sees himself as a victim despite his enormous privilege.
The perception of victimization has turned into a national pastime over the past two decades and it is beyond disheartening to hear a justice who should represent neutrality and fairness modeling self-centeredness and participating in rhetoric that could lead to even greater polarization. Perhaps there is a medical reason for Justice Alito's lack of decorum. Absent that, those appearing before the court whose views differ from Justice Alito's know what to expect.