A not-so-hypothetical state law of the near future:
“It is the policy and law of the state of [Gilead aka Any Republican-Controlled State] that the purpose of females in society is to serve the interests of males in all matters. Therefore, the legislature hereby declares:
- The crime of rape in which a male forces a female, by violence, intimidation or otherwise, to engage in sexual intercourse is abolished;
- Any female forced to engage in sexual intercourse as stated in section (1), must, if impregnated, take every measure to assure to the maximum extent medically possible that the child thus created be born alive, regardless of the circumstances of its conception or any medical issues involving its birth, survival, or future existence;
- Any female who fails to comply with section (2) hereof shall be guilty of the felony of murder in the first degree and shall be punished by death.
- Any female convicted under section (3) hereof shall submit to such medical tests as are necessary to determine paternity and shall forfeit all her property rights to the male who impregnated her.”
Seems insane, I know, but given the theocratic posturing of Republicans and their insistence on a society in which women’s rights are subordinated to those of men, it is not beyond imagining that the removal of constitutional protections for abortions will lead to state statutes similar in substance to the one set out above. In fact, multiple Republican-controlled states have already enacted severe restrictions on abortions with no exceptions for rape and incest.
In a recent post I raised some serious ethical concerns about the relationship between Supreme Court Justice Clarence Thomas and his wife’s involvement in efforts to overturn the 2020 election. I mentioned some issues related to Justice Alito’s November 12, 2020, speech before the Federalist Society, the far-right organization whose vetting and approval is essential for appointment of judges that Republicans in the Senate support. A rough transcript of the Alito speech can be seen at https://otter.ai/u/ezh-387rQb7p7Yq87udbMb4Eovk if you have the stomach for it.
In light of Alito’s remarks, just over a year ago, it was no surprise that he had authored the majority Supreme Court opinion that was leaked to and reported by Politico. https://politi.co/3s96yA6
Alito opened his Federalist Society speech with an homage to the role of the Society as a bastion of free speech, open dialogue with, he claimed, no political or other agenda, ignoring, among other things, the role it plays in vetting conservative candidates for judgeships, including on the Supreme Court. Keeping with his theme of what he was not speaking about, Alito noted the “previously unimaginable restrictions on individual liberty” that arose during the pandemic but insisted,
I am not saying or even implying, I am not diminishing the severity of the viruses 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. Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial. trials in federal courts have virtually disappeared in many places who could have imagined that
Alito continued –
the COVID crisis … has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?
We had a covid related case from Nevada. So I will take the Nevada law as an example. Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement.
Now, again, let me be clear, I’m not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I’m not passing judgment on this particular issue. statute,
I want to make two different points. First, what we see in this statute, and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise. And in the purest form, scientific expertise.
Second, laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.
When I read that, my first reaction was that a politician like Ted Cruz was speaking, making a classic right-wing anti-deep state conspiracy claim. The speech reads like a game of “which cup is the pea under,” with Alito repeatedly disclaiming the intention to make the very points he was making.
Alito next attacked the leading precedent for the constitutionality of public health measures, Jacobson v Massachusetts, 197 U.S. 11, decided in 1905. He started with a judge joke that would appeal to the ultra-conservative audience:
The case concerned an outbreak of smallpox in Cambridge, and the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge.
Almost as if signaling the lawyers waiting to challenge the national health policy regarding COVID, Justice Alito offered up multiple grounds for limiting and distinguishing Jacobson in the future and segued into a discussion of “religious liberty” with the observation that,
It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right. And that marks a surprising turn of events.
Noting that a Supreme Court decision in 1990 (Employment Division v. Smith, 494 U.S. 872) had “cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment,” Alito noted that Congress promptly passed, and President Clinton signed, the Religious Freedom Restoration Act with nearly unanimous support. But, according to Alito,
today that widespread support has vanished. When states have considered or gone ahead and adopted their own versions … [t]hey have been threatened with punishing economic boycotts.
Some of our cases illustrate this same trend.
Note that the majority opinion in Employment Division was authored by none other than Antonin Scalia, the leading icon of the conservative judiciary and originalist thinking on the Supreme Court (the Constitution must be interpreted according to its “public meaning” in the late 18th century). Scalia wrote:
We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition….
Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.
This precedent, apparently, was a bridge too far for Alito who appears to believe that the assertion of any religious grounds for conduct exempts that conduct from state regulation. The mind boggles.
His speech then launched into a protracted series of complaints about the Supreme Court’s treatment of religiously motivated “good works,” even if, and perhaps especially if, they lead to discriminatory treatment of people outside the penumbra of a particular religious belief. Such belief, Alito appears to believe, despite all the denials, is by itself a sufficient basis to permit denial of services to others not committed to the same ideas.
For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed….
The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.
Alito likened the trend he perceived to the treatment of Germany and Japan after 1945: “It’s not dark yet, but it’s getting there.”
Alito reviewed with disdain the Supreme Court’s treatment of the COVID pandemic, arguing that deferring to state governors on public health grounds led, in Nevada, to opening the casinos and,
“So if you go to Nevada, 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’re the 51st person in line, sorry, you are out of luck. houses of worship are limited to 50 attendees.”
And on and on.
Since I am now at risk of writing a critique as long as the original speech (almost 5,000 words), I will cut this short. Suffice to say that the tone of Alito’s remarks was consistent with the tenor of the draft opinion released by Politico. And while Alito initially focused on religious freedom, he also complained that “Support for freedom of speech is also in danger.” His main reference there was to “things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations.”
He also specifically complained that the Supreme Court’s decision on same-sex marriage had led to claims of bigotry against people who continued to assert that marriage was the union between, and only between, one man and one woman. Repeating “old beliefs” in public was predicted to lead to accusations of bigotry, just as Alito and other dissenters had expected.
Alito was clearly playing to the prejudices and fears of the arch-conservatives in the Federalist Society. He complained about attempts of individual senators to influence the Court’s decision-making, labeling a brief a group of them filed as an attempt to influence it by means other than legal argument and referencing another country where tanks were brought to bear against a high court in another country.
Following a likely-obligatory shout out to Scalia again, Alito ended his tirade with this signal [corrected for obvious transcription issues]:
… in the end, 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. For all Americans, standing up for our constitution and our freedom is work that lies ahead. It will not be easy work.
Taken as a whole, this, speech resembles the work of politics, not law. It is an ultra-conservative judge speaking to an ultra-conservative political body and, in words more elegant than those typically used by Donald Trump, warning them that their religious liberty and other “rights” are at risk from liberals bent on helping “others” and placing their needs ahead of those of “true Americans.” It appears now that with Alito’s draft opinion in circulation, the ultra-right is on their chosen path to having the state control the lives of females who comprise about half of all Americans. Welcome to Gilead.
I will have more to say about the irreconcilable paradox of Republican conservative politics in the next post. For now, it is sufficient to observe that the idea of lifetime appointments has been fatally undermined. No country, certainly not this one, can withstand the theocratic authoritarianism that has infected the Supreme Court under the phony guise of “religious liberty.”