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Douglas Andrews / Nov. 16, 2020

A Justice Speaks Out

Justice Samuel Alito warns that our most fundamental rights are under siege.

It’s no surprise that Supreme Court Justice Samuel Alito’s speech last week to The Federalist Society’s National Lawyers Convention received little coverage in the popular press. Why would it? Alito lacks the rhetorical flourish and the mischief-making wit of his late Supreme Court colleague Antonin Scalia, and he was speaking a language — the language of Liberty — that those in the Leftmedia neither understand nor appreciate.

Nor, it seems, are a majority of Justice Alito’s colleagues on the High Court fluent in that language.

In this respect, Alito seems like a quietly but firmly conservative version of the late Democrat Senator Paul Wellstone, who often took a friendly swipe at his consensus-seeking colleagues. “I’m from the Democratic wing of the Democratic Party!” he’d roar. Similarly, it seems, Justice Alito is from the conservative wing of the Supreme Court’s conservative majority.

“The pandemic has obviously taken a heavy human toll,” Alito began. “Thousands dead, many more hospitalized, millions on employed the dreams of many small business owners dashed. But what has it meant for the rule of law? I’m now going to say something that I hope will not be twisted or misunderstood. But I have spent more than 20 years in Washington, so I’m not overly optimistic. In any event, here goes. The pandemic has resulted in previously unimaginable restrictions on individual liberty. Now, notice what I am not saying or even implying: I am not diminishing the severity of the virus’s threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker. All that I’m saying is this, and I think it is an indisputable statement of fact: We have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020.”

Justice Alito went on to cite concrete examples of this erosion of our rights, most of them enshrined within the First Amendment. “It pains me to say this,” he said, “but in certain quarters, religious liberty is fast becoming a disfavored right.”

He then expressed disappointment that the High Court had refused to hear cases in California and Nevada that he said blatantly disregarded our fundamental rights by denying people the ability to congregate and worship. “If you go to Nevada,” he said, “you can gamble, drink, and attend all sorts of shows, but here’s what you can’t do: If you want to worship, and you are the 51st person in line, sorry, you are out of luck.”

If, as de Maistre said, people get the government they deserve, then the people of Nevada are getting it good and hard under Democrat Governor Steve Sisolak. As Justice Alito put it, “Forget about worship and head to the slot machines — or maybe a Cirque du Soleil show. Now, deciding whether to allow this disparate treatment should not have been a very tough call. Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment, which protects religious liberty. You will not find a craps clause or a blackjack clause or a slot-machine clause.”

Alito’s speech covered other cases of discrimination against speech and religion, and it’s well worth listening to. He closed by noting, “There is only so much that the judiciary can do to preserve our Constitution, and the Liberty it was adopted to protect. As Learned Hand famously wrote, ‘Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it.’”

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