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.
I was not as concerned as Prof. Turley by Justice Alito’s speech. It seemed to me that he was offering observations on issues of general concern, not on specific cases before the court. For example, he was not suggesting that specific measures taken to contain the virus might violate the Constitution. He clearly thought some of them were less than reasonable, but his general point was that there has been a tendency for non-elected experts and bureaucrats, as well as some elected officials, to usurp legislative powers due to the structure of the administrative state and vague descriptions of what constitutes an emergency. It is a useful issue to raise, given that over the past century or so would-be dictators have used ‘decree’ powers which were triggered by emergencies to ‘enable’ their takeover of state power.
He also offered several examples of how attitudes and values have changed over the past three or four decades and how these changes have eroded our freedoms of choice, of religion, of assembly, and of speech.
As a Supreme Court Justice he must be circumspect regarding his opinions, but the distinction between professional role and private opinion is similar for all of us. What we say when we are on the job should not be confounded with what we say when we are not, unless we intentionally choose to confuse our professional and personal lives. Failing to separate the two is a major reason that freedom of speech is under siege at the moment, but it is not clear that Alito did so in this speech.
Senate confirmation hearings are nothing more than efforts to get nominees to publicly expose their views on any and every issue. And when that effort fails, politicians and the media fill in the blanks anyway. I happen to believe a justice speaking philosophically about issues that have or may come before the court is only a problem if that justice is ideologically motivated, as opposed to constitutionally motivated.
Well said. I could not agree more. The nine should refrain from commentary on societal issues so as to avoid the appearance of impropriety,. It is a basic legal ethic
Steve Vladeck, UT Austin law prof:
“I know we shouldn’t expect better from @JonathanTurley, but it’s hard to put into words just how irresponsible it is for a constitutional law professor to go on national television and spout conspiracy theories about election integrity that have already been thoroughly debunked.”
https://twitter.com/steve_vladeck/status/1327224408168157184 (embedded video of Turley on Fox repeating the debunked claim)
From this: “I have been particularly critical of the late Justice Antonin Scalia and Associated Justice Ruth Bader Ginsburg” . What’s an “Associated Justice”? You know better than that!
Meanwhile, Tommy Tuberville, who will be sworn in as a new U.S. Senator in January, thinks the three branches of government are “the House, the Senate and executive”.
“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.”
Yeah, well, you are also out of step with the Left in our nation. They live to break laws (Bill and Hillary, Barry O, Hunter and Joe Biden, etc) while Conservatives have historically played nice and gotten screwed royally. Trump broke that pathetic stance and now…..now the world has shifted on its axis. It is High Noon, Bubba.
Turley has criticized the political Left.
I guess you are just so enamored with the “no law and disorder” Trump! Give it a rest. Trump and his clan have avoided prosecution and investigation for years.
We see you are scared. Auwwww. Go grab your latte and blanky.
Bill and Hillary should have been shot years ago for what they did to women from Arkansas to DC. From there your Dear Lefty Leaders have torched the US Constitution with gusto, and Americans across the nation are over it. Keep your coastal elite cities, pink puzzy “resist” hats and your ANTIFA BLM Thugs. We will take care of the situation like the good ol days.
The Mueller investigation proved there was nothing to prosecute.
The Mueller Investigation showed that Trump engaged in obstruction of justice. The Senate Intelligence Committee Report also indicates that Trump committed perjury in answering Mueller’s questions. I hope Trump is indicted after he leaves office.
The Mueller Investigation showed that Trump engaged in obstruction of justice.
It didn’t show that per any definition of ‘obstruction of justice’ to be found anywhere outside of Andrew Weissman’s rectum.
Hopefully we’ll have a chance to see what a jury thinks after Trump leaves office.
His lawyer will be free to make your argument.
Hopefully we’ll have a chance to see what a jury thinks after Trump leaves office.
Yeah, frivolous prosecutions of former Presidents are just boffo uses of the government’s time.
No, frivolous prosecutions of *anyone* aren’t “just boffo.” You think it’s frivolous. I don’t. If a grand jury indicts him, that would indicate that they don’t either.
Trump is a criminal. He broke campaign finance laws with his hush money payments, he broke the false statements law when he omitted his debt to Cohen on his financial disclosure form and and then certified it as complete and correct, he’s embroiled in a tax fraud investigation, …
The civil suits against him are also slowly progressing. I look forward to him being deposed by E. Jean Carroll’s and Summer Zervos’s lawyers.
I didn’t see you objecting while Trump was advocating for it for his entire 4 years and even tried to get his election opponent arrested in the month before.
above post directed to Deco
Another posting that sounds like a prankster or brain dead person. Are those two related?
Is this commit for real? He sounds like a prankster or brain dead.
You sound like a troll.
Why are you calling someone a troll? Your responses were over the top. Listen to your own discussion. I don’t know if I would have said what the other said, but your responses are way out on the fringe.
F. George, I said s/he sounded like a troll because s/he posted two comments that only contained insults.
How about you quote what I wrote that you consider “way out on the fringe”? I’m not going to guess what you’re referring to.
I wouldn’t use the words used by the anonymous poster but he had a point, not the proper language. I just read comments you made to another poster and realize you say things that you have difficulty defending. I think you went bye. You are a bit over the top whether or not I agree with you or the other poster. You can reread your own post or not and continue to insult posters whether they be trolls or not.
If you’re not going to clarify what you were referring to when you said “way out on the fringe,” so be it.
Commit: Why should anyone define for you what is out on the fringe? You scurry away all the time from what I am starting to see on this blog. You have a double standard. You maintain an air of superiority. Your atheism is better than another’s religiosity. Therefore, what is forbidden to the baker by his underlying code is forced on him by people like you. The baker didn’t force his religiosity on the couple getting married. You are blind to the feelings and beliefs others. You sound like the world you wish to live in is autocratic where your ideas are the only one’s that have merit.
Those are my impressions from being here only a short time and looking at some of the things you have written, including the “Bye.” which is probably the most important accomplishment you have made. If I continue on the blog and post on comments I feel are foolishly written, don’t feel the need to say ‘hi’ and comment on them. Your ‘hi’ is nothing more than a way to air your feelings of superiority after which you get insulted and say “Bye.” Maybe I was too harsh in my criticism of Anonymous when he used insulting language responding to you. Perhaps he was more correct than I imagined.
“way out on the fringe” : Far from the center.
CommittedToLyingByOmission and the rest of her fellow domestic enemies have zero credibility regarding law and justice. Whatever their imaginations concoct regarding President Trump, the body of evidence overwhelmingly reflects egregious criminal activity, but they pretend it doesn’t exist. That’s a very embarrassing omission to commit on an international legal blog.
Olly, “CommittedToLyingByOmission” describes you a lot better than it describes me.
Signified by Trump’s refusal to be interviewed along with McGahn, no doubt. All eyes turn to NY state on January 21.
Given Turley’s silence on the theft of SC seats from popularly elected Presidents – done twice now in 4 years, and one time in direct conflict with the Senate’s clear constitutional duty to advise and consent – to hand them over to another President who American voters specifically rejected twice, he has no standing to comment on the integrity of the SC .There is no reason to care what he thinks on this subject.
Given that Turley regularly appears on cable news and LIES through his teeth should disqualify him from speaking authoritatively on any subject.
Given that you use the word Given habitually, it is a given you need new avatars to accompany your given sucky Puppets
There seem to be a lot of hateful people on this blog.
Thanks!
So what you’re all saying is that SCOTUS members don’t get the same 1st amendment rights that the rest of us enjoy as US citizens? Wow, just wow. The problem isn’t that they speak on topics “that may come before them”. That’s most likely impossibly unavoidable in the natural course of a person’s life. The problem is the people the liberals have been appointing to the SCOTUS for about a century now. The Founder’s idea was to put people on the court who had the integrity to both have their own opinions AND be able to apply law to the Constitution. It’s not a difficult concept. The liberal narrative, however, along with the judicial activism on the left has blurred that point. The solution, even this is even a problem at all, isn’t to silence SCOTUS, it’s to appoint members with character, honor, and integrity. Of course that idea doesn’t fit the leftist agenda. How do you not see that?
Mr. Turley, 70+ million Americans voted for Trump in an overwhelming FU to the communist ideals of the Democratic Party. We need every citizen, Supreme Court justice or other, who loves America and wants America to remain FREE to stand up to this attempted coup on our beloved president. The issues we see today are Klaus Schwabs vision for the new world: where mega companies become the new government. Facebook and Google decide what is best for citizens. Amazon crushes small businesses because it can and no one will stop it. This is not right.
Here here!
There is no “attempted coup.”
Trump lost the election. He lost because he is not beloved by most Americans and because he’s incompetent. Most Americans are not part of his base. In his entire presidency, he never had majority approval. If he’d simply done a good job handling the pandemic, he’d have been reelected, but he couldn’t do it.
Alito should go into the Witness Protection Program. The Left will hunt, hang, draw and quarter him while the woke mob cheers. Alito has fired the first and necessary shot to begin Civil War 2.0 Its about time
The Professor is entirely correct in his position and comments….but sadly the reality is just as he describes it.
If you are from the Left…either as a Justice, Judge, or Politician….you can say anything and be applauded by your side’s memebers….the Media will even hype or pimp your comments for you.
Do that as a Conservative or a member of the Right….no matter your position in life and you shall be attacked.
The Professor’s comments although fair and balanced do just that when he criticizes Justice Alitio.
The Professor in the past did criticize Justice Ginsburg and rightfully so but his voice was one from the Darkness as she was elevated to Sainthood by her supporters on the Left.
The Professor has long been concerned about the assault on Free Speech in this country especially in the Media and on our College Campuses which are two elements of our society where such Free Speech should be welcomed and appreciated.
We all know the root cause of our problems today…..the lack of a Free Press that speaks the truth to those in Power no matter which Party it is.
You have got to be kidding. If you read this post you will know that Turley can’t stop attacking Ginsburg and neither can the Republican Party and it’s sainted leader Trump.
It’s no secret that the Judicial Branch is no longer (if it ever was…certainly not in my lifetime) an objective arbiter of the law but is nothing more than another political branch of government, basing opinions on the political leanings of the majority of appointees with a fig leaf of tortured jurisprudence to rationalize otherwise irrational (from a legal perspective) decisions. Why keep pretending otherwise?
Look who is talking about an ethical obligation to present a neutral facade on legal issues? As a legal analyst, aren’t we to presume that you are rendering your legal opinions on this blog impartially and NOT as a partisan advocate? Recently, I was flabbergasted to see you, a distinguished professor holding the Shapiro Chair for Public Interest Law at The George Washington University Law School, appearing on Hannity! What’s next? Alex Jones if the price is right? Or could it be that Infowars is not within your bounds of legitimate debate? As if Hannity is much better, but I suppose your Fox contract obliges you to present yourself on any propaganda program they demand. You will not have to live long to regret your legitimizing with your appearance a virulent hate monger such as Hannity who weekly hosts “the Great One,” a lawyer named Mark Levin, who has become the Judge Roland Freisler of Trumpism. One day you will look back with shame. Pathetic.
We all owe Jeffery Silberman our appreciation for enlightening us by his offering.
“The State rests its Case, Your Honor!”…..Silberman attacks the Good Professor, a Man of Principle, because he disagrees with the Professor’s views.
He shows his Leftist brainwashing by his very words and tone.
Yet….he thinks that method is superior and more acceptable than adopting Trey Gowdy’s favored method called “persuasion” when one seeks to change someone’s views on a topic.
We on the Right, who are in the right on this issue, thank you for your practical demonstration of what we are really talking about here.
Well Done…..perfect timing….we do appreciate your input although we completely reject it due to the weakness of your logic, style, facts and presentation.
” appearing on Hannity” is suddenly a crime? Silberman, your brain is destined for extinction. Is it OK when he appears on CNN?
Start listening to what he says instead of reading what channel he is on,
I don’t know where I stand on SC justices and their public opinions. Maybe it’s healthy and maybe it’s not. Dunno.
What I DO think is very unhealthy is how our current media system is not merely blatantly biased, but with Biden taking over, will become the defacto mouthpiece of the government. That’s exactly the opposite of what should be happening with presidential coverage. With Trump as president, at least he got challenged. People thought was Trump was dangerous. Fine, but at least he was challenged.
So, despite the potential issues withe the SC speaking in public about such issues, one benefit is that at least someone with credibility is sounding the alarm.
Additionally, this is a great article written by Matt Taibbi (no supporter of Trump) about Glen Greenwald’s resignation from The Intercept. Very much related to what this blog is all about.
https://taibbi.substack.com/p/glenn-greenwald-on-his-resignation
I agree 100% with what you’re saying and that goes for all judges and justices. The fact that leftist judges routinely flout these rules and are received with adulation when they do so does not mean “conservative” judges should sink to their level. However, in real life, one extreme requires another extreme to counterbalance it. We are experiencing an unprecedented assault on our constitutional rights “because Covid.” Americans, because we are good little boys and girls, mostly accept and just keep going. We lose our jobs, our life savings, our homes, our businesses, and we grit our teeth and keep going, “because Covid.” When is this going to stop? The answer is, never. Once we have established the precedent that there are some things more important than our rights, we’re done, and we are at that point. If you were looking at this whole situation from 100 years in the future, you would see clearly that none of this is by chance. You would understand that taking rights away from American citizens is a shell game of colossal proportions. It is interesting because the current ACA hearings have focused on severability. The Founding Fathers also focused on severability – in this case, the severability of basic human rights from human beings. That’s what “inalienable” means. Human beings and their rights are not separable and the rights to life, liberty and the pursuit of happiness are not severable from one another. “Life” does not just mean curled up in a fetal position with a plug stuck in our brains a la The Matrix. The rights can be and routinely are violated in most countries worldwide but that doesn’t make them any less basic human rights. I don’t know what the solution is. Maybe the Supreme Court as a body could issue some kind of guidelines so that they don’t have to hear the same cases again and again.
“They should speak primarily, if not exclusively, through their opinions.”
Agree 100%
“There were speeches that electrified the left and built her persona as the “Notorious RBG.”
Yes, and her notorious persona is why she refused to step down while the Wall Street shineboy named Barry was still in office, despite the fact that she had cancer and was far too old to battle cancer while still remaining on the court.
So now what she is most notorious for with lifer Democrats is the timing of her demise.
“Poetry in its purest form.” – J.D. Salinger
In his book, One Vote Away, Ted Cruz wrote that, after the Citizens United decision, a Constitutional amendment was proposed to remove freedom of speech from the fist amendment. Every Democrat senator voted for it.
The proposed amendment did NOT attempt to remove freedom of speech from the 1st Amendment.
That was written by me, the real CommitToHonestDissembling, and not fake Anonymous pretending to be me
The 8:51am comment was written by me, CommitToHonestDiscussion.
So when Obama says an outright lie during his State of the Union address about something the justices ruled on, a justice has no recourse to set the record straight unless he actually says, “That’s not true!” during the speech or mentions it in a speech later. According to you, he should do neither. Democracy Dies is Darkness.
Any justice can point out that it’s not true in his rulings.
Democracy is evil and needs to be strangled in its crib every time it appears.
I assume you don’t plan on being nominated to the Supreme Court in the future. Your daily opinions as a political pundit could hinder that.
ouch…..
Must they wear their robe as a mask?