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Analysis

Justice Alito and Supreme Court Ethics

Alito’s biting, political speech highlights the need for reform.

November 20, 2020

On Novem­ber 12, Justice Samuel Alito gave a contro­ver­sial speech to the Feder­al­ist Soci­ety, an influ­en­tial conser­vat­ive legal group with close ties to the judi­ciary.

Bemoan­ing what he char­ac­ter­ized as grow­ing threats to free speech and reli­gious liberty, Alito took aim at the Supreme Court’s historic decision that same-sex couples have a right to marry, along with recent cases on abor­tion rights and restric­tions imposed to prevent the spread of Covid-19.

It was an unusu­ally polit­ical speech for a justice at a time of grow­ing scru­tiny about the Supreme Court’s public legit­im­acy. His remarks didn’t do the Court any favors in that regard — and it’s time to hold the Court to a higher stand­ard.

Alito began his speech by arguing that the Covid-19 pandemic “has resul­ted in previ­ously unima­gin­able restric­tions on indi­vidual liberty,” though he added that he was “not dimin­ish­ing the sever­ity of the virus’s threat to public health.” Among other things, Alito criti­cized the Supreme Court’s July decision to reject a Nevada church’s chal­lenge to state-imposed social distan­cing restric­tions, arguing that Nevada “blatantly discrim­in­ated” against houses of worship because its restric­tions on casi­nos were less strict.

The justice also poin­ted to consti­tu­tional strides for gay rights and abor­tion access as some of the greatest threats to the First Amend­ment. He argued that “now it is considered bigotry [to] say that marriage is the union between one man and one woman,” adding that Amer­ic­ans who don’t believe in gay marriage are facing unjust restric­tions on their free speech. And he criti­cized a state rule requir­ing a phar­macy to provide morn­ing-after pills when the owners of the store had a reli­gious objec­tion to abor­tion.

It was an unusual speech in tone and content, and it drew wide­spread criti­cism from legal schol­arsadvocacy groupssenat­ors, and others, who sugges­ted that Alito exer­cised poor judg­ment and may have crossed ethical lines. Erwin Chemer­insky, the dean of Berke­ley Law, said that he could not “think of any speech like this one that discussed so many issues and in a clearly ideo­lo­gical, partisan way.” Geor­gia State Univer­sity law professor Eric Segall observed that “we’re living in a very partisan moment” and that judges should recog­nize “this is not the time to stir this pot.” Consti­tu­tional law professor Daniel Epps said that Alito’s speech made a strong argu­ment for court reform, because it demon­strated that there is “no good justi­fic­a­tion for a system that gives an angry partisan like this a veto on legis­la­tion.”

On the other hand, some legal comment­at­ors did not take issue with Alito’s comments. Ilya Shapiro of the Cato Insti­tute, a liber­tarian think tank, said that he didn’t find Alito’s comments inap­pro­pri­ate because he does­n’t think that “we should keep judges out of the public sphere,” espe­cially because the justice didn’t express views in his speech that were not covered in previ­ous writ­ings.

Alito is not the only Supreme Court justice to draw scru­tiny for partisan-sound­ing state­ments. In 2016, the late Justice Ruth Bader Gins­burg called then-pres­id­en­tial candid­ate Donald Trump a “faker” and said she “can’t imagine what the coun­try would be” with Trump as pres­id­ent. Her state­ments were denounced by several legal schol­ars as well as the edit­or­ial board of the Wash­ing­ton Post for being overtly polit­ical. Gins­burg later apolo­gized for her remarks, call­ing the comments “ill-advised.”

Alito’s remarks occurred against the back­drop of new scru­tiny about the politi­ciz­a­tion of the Supreme Court follow­ing the unpre­ced­en­ted confirm­a­tion of Amy Coney Barrett just days before the 2020 elec­tion. Progress­ive groups, members of Congress, and some legal experts have been discuss­ing options for reform, includ­ing impos­ing term limits for the justices, juris­dic­tion strip­ping, and most notably, expand­ing the size of the Court.

These sugges­tions have clearly struck a chord with Alito. In his speech, he described a 2019 friend-of-the-court brief from five Demo­cratic senat­ors that called for a poten­tial restruc­tur­ing of the Court “an affront to the Consti­tu­tion and the rule of law.”

However, the justice’s own speech under­scores how few steps the Supreme Court itself has taken to shore up public confid­ence in its integ­rity as an insti­tu­tion. Alito weighed in on polit­ic­ally charged contro­ver­sies — includ­ing ones that may appear before him in the future. Yet strik­ingly, Alito and his fellow justices are the only judges in the entire coun­try who do not have to adhere to a code of ethics — some­thing the Court could choose to adopt at any time.

The Supreme Court’s silence on this — and Justice Alito’s will­ing­ness to give a caustic and polit­ic­ally charged speech in the current moment — both speak volumes.