Tuesday, November 17, 2020

Part I

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Religious Freedom as America’s “Disfavored Right”? Justice Samuel Alito Delivers Remarkable Speech on the State of American Liberties

Whenever a justice of the Supreme Court of the United States gives a speech, it is likely to be newsworthy, but a speech given last Thursday by Supreme Court justice, Samuel Alito, has turned out to be particularly newsworthy and particularly important. And we can also add, it has been particularly irritating to the political left in the United States.

Let’s look more closely at what Justice Alito had to say. He was speaking to the lawyer’s gathering of the Federalist Society, and as he got up to speak, he went through the customary niceties, and then he came to the issue of intolerance in the United States, pointing to the fact that a growing intolerance is now present in many law schools where, as he says, “Tolerance for opposing views is now in short supply.”

He went on to generalize that to what he called the larger or broader academic community. He went on to say, “When I speak with recent law school graduates, what I hear over and over is that they face harassment and retaliation if they say anything that departs from the law school orthodoxy.”

He went on to say that that makes organizations such as the Federalist Society more important than ever. He pointed to efforts from the left that took place in the American Bar Association in recent months, efforts to make the membership of judges in a group like the Federalist Society to be rendered unethical. That measure failed, but it came with broad support from the left because, right now, the Federalist Society is one of the organizations that they hold with the greatest antipathy.

But after speaking about the larger problem of an enforced liberal orthodoxy in the larger academic community and in law schools in particular, after speaking about the problem of intellectual intolerance, he went on to suggest that the COVID-19 pandemic, also in light of the court’s past year, has made clear the fact that the federal government and state governments are acting in ways that are constricting individual liberties in the United States, and that includes fundamental liberties, and those include, most importantly, religious liberty.

But he spoke of the larger problem in the midst of the COVID-19 pandemic saying that it has “resulted in previously unimaginable restrictions on individual liberty.” Justice Alito went on to say, “Now, notice what I’m not saying or even implying. I’m 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.” He said, “I’m not saying anything about the legality of COVID restrictions.” But he went on to say, “I think it is an indisputable statement of fact, we’ve never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020.”

He was quite specific. “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. Think about access to the courts or the constitutional right to a speedy trial. Trials in federal courts have virtually disappeared in many places,” he said. “Who could have imagined that the COVID crisis has served as a sort of constitutional stress test? And in doing so,” Justice Alito says, “It has highlighted disturbing trends that were already present before the virus struck.”

He spoke of the radical enlargement of the administrative state and its production of regulations stating, “Every year, administrative agencies, acting under broad delegations of authority, churn out volumes of regulations that dwarf the statutes enacted by the people’s elected representatives.” And then he went on to say that in the context of the pandemic, what we have seen is sweeping restrictions “imposed for the most part under statutes that confer enormous executive discretion.”

So, what he is saying, and this is a very important conservative concern, it’s a deep, constitutional concern, is that the growth of the administrative state, of federal bureaucracies and the larger administrative structure, the federal government, leads to the promulgation, the handing down of endless regulations that actually don’t have to go through any legislative process, and no one that will have to face the American voter is responsible for these regulations.

This is a huge issue, and it is by itself redefining America’s constitutional form of government. A little footnote here, that’s exactly what the Progressives in the early 20th century wanted. That’s exactly what someone like President Woodrow Wilson was calling for. But we now see that in the context of the COVID-19 pandemic, this danger is becoming all the more alarming.

Speaking of the COVID restrictions, Justice Alito clearly understands that many of them were necessary and likely constitutional, but he points to the danger that they will not be rolled back once the pandemic is over. He says, “All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label,” he said, “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.”

Now, one of the most important things we need to recognize here is that Justice Alito in this speech to lawyers went right to what we discussed on The Briefing, and that is the fact that he and some other conservative justices complained about the fact that the Supreme Court did not take on appeal a case from an evangelical congregation in the state of Nevada, where the state government had rendered it legal for people to gather in casinos, but not to gather in churches.

The rules were different for casinos than for churches, and Justice Alito points out that is an undeniable and unforgivable abrogation of the First Amendment rights of Americans, especially the freedom of religious expression rights that are very clear in the constitution.

But what’s really important to recognize is that Justice Alito, one of the nine justices of the United States Supreme Court, by the way, he’s been on that court since 2006, nominated to it by President George W. Bush, Justice Alito went on to point to the fact that it’s not just COVID-19. It’s not just the pandemic. It’s not even just recent developments. The reality is that religious liberty has been subverted and is under attack in the United States and has been for some time.

He actually said this, “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.” That’s absolutely right. Indeed, it cannot be refuted. But, nonetheless, it takes a matter of clarity and courage for a justice of the Supreme Court, sitting on the court right now, to make this kind of statement in public.

Speaking, of course, after the election, and this is absolutely important in this case, it would have been improper for a justice of the Supreme Court to be speaking this way in public just before the election, but speaking after the election, after Americans have already cast their votes, Justice Alito pointed to the fact that you’re looking at the reality that groups such as The Little Sisters of the Poor, a group of Catholic nuns, and evangelical bakers and florists and others who hold to sincere religious beliefs in conflict with the legalization of same-sex marriage now find that their own religious liberty rights are routinely denied by the cultural left. Justice Alito pointed to the fact that state by state, some of the American states are now responding in a way that is openly hostile to the religious liberty of conservative religious believers in this country.

He mentioned not only The Little Sisters of the Poor, he mentioned the Ralphs pharmacy case in the state of Washington Where the state of Washington, as Justice Alito pointed out, even though persons could have obtained the morning after pill from other neighboring pharmacies, I believe the justice actually said there were about 30 other pharmacies that were dispensing this drug within a radius of about five miles, but nonetheless, the state of Washington was so intent on pushing its own moral revolution, that it wouldn’t abide one single pharmacist who, on the basis of conscience, could not dispense an abortive-fashioned drug, in this case, the drug that is most commonly referred to as the morning-after pill, which does not prevent fertilization, but rather prevents the implantation of the fertilized embryo within the woman’s uterine wall.

He mentioned cake baker, Jack Phillips in Colorado. Remember that at least one government official in Colorado said that religious liberty was just an excuse for a form of ethical or moral bigotry in the case of Jack Phillips, who, after all, is simply an evangelical Christian who was operating by evangelical Christian principles. And Justice Alito also pointed out the problem was not fairly construed as the fact that the same-sex couple could not gain an adequate wedding cake. The fact is they were demanding that this specific baker violate his own religious conscience to create this cake for them.

He also speaks to the artificiality of the outrage from the left, as he says, “As far as I’m aware, not one employee of The Little Sisters has come forward and demanded contraceptives under the Little Sister’s plan.” There was no risk, he said, that the referral practice at Ralphs pharmacy, “Would have deprived any woman or the drug she sought, and no reason to think that Jack Phillips’ stand would deprive any same-sex couple of a wedding cake. the couple that came to his shop was given a free cake by another bakery, and celebrity chefs have jumped to the couple’s defense.” In other words, these are put-up cases in order to bring about a moral coercion with the power of American law. Most of the headlines about Justice Alito’s speech had to do with his comments about same-sex marriage and the inevitable collision between religious liberty and the LGBTQ revolution.

He said, “That this would happen,” meaning the abrogation of religious liberty and claims that conservative Christians are nothing but bigots. He said, “That this would happen after our decision on Obergefell should not have come as a surprise. Yes,” he said, “the opinion of the court included words meant to calm the fears of those who claim to traditional views on marriage. But I would say, and so did the other justices in dissent, where the decision would lead. I assume that those who claim to old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. That,” said Justice Alito, “is just what is coming to pass. One of the great challenges for the Supreme Court going forward,” he said “will be to protect freedom of speech. Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier constitutional right.”

Before leaving Justice Alito’s speech, we need to recognize that he also took direct aim at five members of the United States Senate, all Democrats, who had threatened the court with action if the conservative majority moved in a conservative direction. He said that that kind of bullying by one of three co-equal branches of government is, “An affront to the constitution and the rule of law.” He said this, “Let’s go back to some basics. The Supreme Court was created by the constitution, not by Congress. Under the constitution, we exercise the judicial power of the United States. Congress has no right to interfere with that work any more than we have the right to legislate. Our obligations,” said Justice Alito, “is to decide cases based on the law, period, and it is, therefore, wrong for anybody, including members of Congress, to try to influence our decisions by anything other than legal argumentation.”

Political threats, entirely illegitimate. Justice Alito concluded his historic speech by citing the late judge Learned Hand, who, as he said, famously wrote, and I quote, “Liberty lies in the hearts of men and women. And when it dies there, no constitution, no law, no court can do much to help it.” It was an extremely important address, and that point by Learned Hand that concluded Justice Alito’s address is absolutely right.

When you’re looking at liberty in our constitutional order, it does lie in the hearts of men and women, and when it dies in those hearts, there is no constitution, there is no law, there is no court, there is no government, there is no authority that can resuscitate it. Liberty has to lie in the hearts of Americans because if it dies there, liberty itself here is dead.

Part II

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The Mainstream Media’s Response to Justice Alito’s Speech Is Not Shocking, But Quite Revealing

But it’s really interesting to see the response to Justice Alito’s speech. The Wall Street Journal editorial board liked it, the headline of their editorial, “Alito Defends the Courts.” Many others disliked it. Michael McGough writing for the Los Angeles Times offers an article, the headline, “Alito’s Federalist Society Speech was bad for the Supreme Court.” Carter Sherman at VICE, a headline story, “A Supreme Court justice went on a rant about COVID, abortion, and LGBTQ rights.” William Cummings at USA Today, the headline “Critics decry Supreme Court Justice Alito’s ‘nakedly partisan’ speech on COVID-19 measures, gay marriage.”

Now, of course, the left is still very bitter about the general direction of the court, and the fact that conservatives now have, by most counts, a 6/3 majority on the court. They’re extremely bitter about the fact that in the last weeks before the election, the Senate confirmed President Trump’s appointment of Judge Amy Coney Barrett to the Supreme Court. She’s now Justice Barrett.

And, of course, there was protest at a sitting justice of the Supreme Court giving such a speech. Now, by the way, it is somewhat unusual for a sitting Supreme Court justice to give this kind of speech, except there is one thing that is often left out of much of the major media conversation. It would indeed be improper if you had a sitting justice of the Supreme Court speaking about issues that he had not referenced before in his jurisprudence and with issues that could come before the Supreme Court in the future.

But the point is this. Every single point made by Justice Alito in his speech to the Federalist Society last Thursday is something that he has already made clear in public in the deliberations of the court, either in oral arguments, or in the form of a written opinion, or dissent. You might say for those who were particularly aggravated by this address, it was bad enough that he had said or written these things within the confines of the Supreme Court of the United States, but when he dare go outside of those confines and say the same things, well, it turns out those things were particularly irritating. But, for us, they were also particularly encouraging and especially revealing.

Part III

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Why the Electoral College? Understanding the Architecture of the U.S. Constitution as Calls to Abolish the Electoral College Return Yet Again

But next, speaking of our constitutional order, let’s just remind ourselves that the Electoral College was key to the ratification of the constitution itself, to getting enough of the states as they then existed to ratify the constitution so that we would have the federal government that we now have. We would have the constitutional order we now have. The constitution wasn’t forced upon those original states. It had to be adopted by them. It had to come by agreement. The states had to ratify the constitution. And in order to get the smaller states to agree to ratify the constitution, they required a constitutional order that recognized that we are a federal system. That is, we are a union of states.

We’re not merely a national nation that, of course, would grow demonstrably into a transcontinental nation in the decades and centuries after the constitution was ratified. But you’re also looking at something else. You’re looking at the fact that those smaller states said in order for us not to be trampled by the larger states, with their bigger populations, then there would have to be a couple of accommodations. One of them comes down to the United States Senate.

Time and again, we’ve referred to the fact that the Senate was intended as the upper house, the cooling chamber for the democratic passions of the House of Representatives. That was by intention, and that example is not limited to the United States. The United States could simply look to the British parliament, for example, with House of Commons and the House of Lords to see a similar, though inexact, parallel.

But as you’re also looking at the issue of the constitution, the election of a president became a huge issue because the smaller states could simply be ignored by candidates who would simply campaign in the larger states and, thus, in a national election, the states could end up not mattering at all.

The Electoral College was put in place in order to recognize that we are a federal system and the states matter. Thus, the presidential candidate who wins the office is the one who wins the requisite majority of electors in the Electoral College, and they are designated state by state. It comes down to the total number of representatives and senators for a given state and, thus, the bigger the state, the more electors, but every single state matters.

But those who want to move the society to the left, and that means, in particular, as you’re looking at the demographic distinctions in the United States, those who live in America’s growing cities and, particularly, the highly populated cities and states of both the Pacific and the Atlantic coast, there is growing impatience with the Electoral College and, frankly, there’s growing impatience with the United States Senate. Both the United States Senate and the Electoral College represent breaks on majoritarianism. Now, this is something that many Americans simply don’t think about.

Our constitutional founders were careful not to create a context for the simple tyranny of the majority. If everything were simply determined by a majority, minorities would have their rights basically abrogated, nullified, trampled upon. And this is not just for citizens. It’s also for states, the smaller states, the interior states, the states not on the coast, the states that aren’t so wealthy or well-populated, they would simply be trampled upon by the larger states, or they could simply almost be nullified.

But if you’re trying to press progressive legislation, if you’re for trying to move a society, a government, a culture like the United States in a leftward direction, then you are trying, actually, to overcome the greater conservatism of more rural, more interior, less populated states of the United States. And so you have liberal states and liberal activists in the United States, and for that matter, increasing numbers of leaders in the Democratic Party who want to redefine the Senate. They are threatening to pack the Supreme Court and they want to abolish the Electoral College.

Now, as we have seen in three different times in American history, there has been someone who has been elected president, who has won in the Electoral College, but they lost the popular vote. Most recently, you can think of the elections of President George W. Bush, the 43rd president of the United States in the year 2000, and then the election of the 45th president of the United States, Donald J. Trump in the year 2016. Both of them lost the popular vote, but won in the Electoral College, and thus became president.

But there’s something more going on here, and that is the fact that the modern Democratic Party is extremely frustrated that it has thus far been unable to create the unstoppable political coalition that it has always, in recent years, believed was right around the corner.

It’s interesting that shortly after the election, the New York Times ran an editorial by Jamelle Bouie with a headline, “The Electoral College is Stupid and Immoral.” Now, you might think that a newspaper with the editorial gravitas of the New York Times would come up with a better headline than that, but at least it makes the point.

Bouie’s major point is one that has been made in the same newspaper before, and that is that the Electoral College limits progressive advance when it comes to this kind of election, particularly when you are looking at the current composition and the future shape of the United States, with increased population on those two coasts, those coast being far more liberal than the Heartland, and people in America’s large cities on the coast saying that they don’t want to be bound by the electoral decisions made by less populated states in the interior, in what many simply dismiss as “flyover country.”

The editorial also gets right to the issue at the heart of all of this, and that is whether the United States is a constitutional republic or whether we are a simple, direct democracy. And, of course, the constitution says we are not a direct democracy, but Jamelle Bouie and others, now with the imprimatur of the New York Times, are basically calling directly for a direct democracy when it comes to electing presidents of the United States.

But, of course, that won’t be enough. They’re going to have to call for the democratization of the United States Senate. And that won’t be enough. They’re going to come up with some way to nullify the basic conservative direction of the Supreme Court as well.

But then just this past Sunday, the Washington Post ran a major editorial by the editorial board itself entitled, “Abolish the Electoral College.” The editor said, “The Electoral College, whatever virtues it may have had for the founding fathers, is no longer tenable for American democracy.”

The editors continue, “We write this with full awareness of the challenges of adopting a new system, with respect for many of the people who continue to argue against a switch, and with awareness that any change may have unintended consequences.” The editors also basically call for a national electoral system, a federal electoral system. Now, there’s a sense in which that would be a comforting idea to all of us. We could simply have one set of laws that would apply in all 50 states and US territories.

But there’s a problem with that. The constitution in Article 1, Section 4 in what’s known as the “elections clause” states that the times, places, and manner of holding elections for the Senate and the representative shall be prescribed by each of the states by the legislature thereof. Now, that would seem to be very clear, but that same section of the constitution, Article 1, Section 4, goes on to say that Congress may pass such laws as it deems necessary, except actually the places where senators are to be chosen.

Now, as you think about this, you recognize that there is thus a constitutional argument for the fact that the federal government could simply create a federal election system. But then ask yourself the question, would that create a system that would be more fair or less fair? Would that be less prone to some form of tampering and fraud, or would it be more prone? At least heretofore Americans have believed that they would trust their individual states to conduct these elections more efficiently and with greater integrity than if these elections were entrusted to a federal system.

But it’s interesting. Here’s the Washington Post calling for a federal system. The editors also recognized that a constitutional amendment to eliminate the Electoral College in their own words, “isn’t about to happen.” Of course, it’s not about to happen, and it’s not about to happen for a couple of reasons.

One would be the continued Republican majority in the United States Senate, especially if the special elections in Georgia turn to Republicans. But even still, it’s almost impossible to imagine that even if the Democrats held a slim majority in the Senate that they would be able to press through a constitutional amendment of this sort.

But the other problem is the states. How in the world could you expect the states, many of the states, the states on the interior, the smaller states, the less populated states to commit what would be in effect political suicide when it comes to presidential elections, saying, “Oh, it’s fine that we don’t matter whatsoever. We’ll simply turn our back on the entire logic of the American constitutional system.”

Again, to quote the editors of the Washington Post, it’s not about to happen. But that doesn’t mean that those who are pressing for the elimination of the Electoral College are simply going to be quiet and stop their efforts.

The fact is, they’re trying to come up with other ways to subvert the logic of the Electoral College. And all of that is likely to involve, not only controversies in the future, but rather the question as to whether we intend to continue our constitutional order.

And that’s exactly what Justice Alito was talking about in his address last week with which we began today’s edition of The Briefing. And thus I will end today’s edition by going to the very same quote, once again, that Samuel Alito used to conclude his address from the late judge Learned Hand: “Liberty lies in the hearts of men and women, and when it dies there, no constitution, no law, no court can do much to help it.”