Justice Sam Alito is making headlines after his speech last night as the keynote at this year’s all-virtual Federalist Society National Lawyers Convention. Alito slammed pandemic measures and attacks on free speech in his remarks to the Convention, including the crackdown on “unfashionable views” in our society. I happen to agree with some of his points, but I have great reservations over a justice speaking on issues that are likely to come before him on the Court. Indeed, I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues. I have been particularly critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups.
Justice Alito addressed attacks on religious liberty and free speech, including citing past cases and disputes before the Court. He also declared “The Covid crisis has highlighted constitutional fault lines” in attacking such rights.
Pandemic limits are the subject of petitions before the Court as well as major cases working through the federal system.
Alito also launched into liberals who he views as threatening religious rights, noting that “[i]n certain corners, religious liberty is fast becoming a disfavored right.” Alito attacked the Obama administration’s “ protracted campaign” and “unrelenting attack” against the Little Sisters of the Poor.” He also criticized a Washington State for requiring pharmacies to provide emergency contraception. He maintained that such emergency contraception “destroys an embryo after fertilization.”
All of those issues have been and will again be before the Court. Indeed, as Alito was making these ill-considered comments, the Catholic Church was coming before his Court in these very issues. There are a number of cases on the docket and pending review that include issues raised by Alito in his public remarks. Those litigants are entitled to justices who are not speaking publicly (directly or indirectly) on the merits of such claims.
I admittedly hold a more traditional and cloistered view of public role of justices. We have seen in the last couple decades more and more public speaking by justices in both books and speeches on contemporary issues. I have called this trend the “rise of the celebrity justice.”
It is worth noting that many liberals are objecting to Alito’s speech despite celebrating even more alarming public speeches by Justice Ginsburg during his life. Throughout her career, Justice Ginsburg triggered controversies over public comments where she joked that she would move to New Zealand if Donald Trump is elected. Ginsburg apologized for that controversy. While she expressed “regret” in that instance, it did not deter Ginsburg in continuing to speak publicly and hold forth on contemporary issues. There were speeches that electrified the left and built her persona as the “Notorious RBG.” Justice Scalia also routinely engaged in public speeches that triggered controversies during his life, which I viewed as diminishing his legacy on the Court.
The trend is obviously toward greater public roles of justices in our political and social debates. I previously criticized Justice Alito for his conduct during a State of the Union address.
These public controversies highlight the glaring contradiction in the use of the “Ginsburg Rule.” The rule is often cited by nominees in refusing to discuss issues or cases in confirmation hearings that might come before the Court. It is a rule that is based on principles of judicial ethics for all jurists. It is not just confined to confirmations. It applies to any justices and judges in discussing such issues at any time outside of courts. Yet, after refusing to answer even generalized questions in these hearings, justices proceed to speak publicly on the very same questions once they are confirmed. Indeed, some justices seem to maintain a fan base or constituency on the right or the left in these speeches — a serious challenge to tradition of neutrality expected of our justices.
Once again, my agreement with some of these points does not alter the concerns over the messenger rather than the message. I still maintain that the price of being one of nine on the highest court is that you refrain from such public roles in our contemporary and political debates. That is not much to ask. Justices should not have constituencies or public personas to maintain. They should speak primarily, if not exclusively, through their opinions.