Now there’s some pretty audacious privilege at work after four years in which white supremacy was culturally mainstreamed by an administration that sought to elevate it in both policy and rhetoric.
In one of the most baldly political parts of the speech, Alito advocated for the special rights of conservative Christians to discriminate against LGBTQ Americans and same-sex couples, in particular.
As only someone with every built-in privilege could do, Alito hetero-splained how no harm was done to a same-sex couple when a Colorado bakery refused to bake a cake for their wedding. The couple, he said, “was given a free cake by another bakery” and celebrities came to their defense. For many, he concluded, religious liberty “can’t be tolerated even when there is no evidence that anybody has been harmed.” Ah yes, oppressors as the victimized and the victimized as oppressors. There’s nothing quite so joyous as being dehumanized while planning a ceremony to celebrate your sacred union.
Alito also complimented his own ability to see the supposed religious suppression coming when the high court delivered its historic 2015 decision legalizing same-sex marriage nationwide. Quoting from his dissent, Alito offered, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers and schools.”
“That is just what is coming to pass,” he continued, calling the protection of freedom of speech one of the Supreme Court’s “great challenges” moving forward. “We need to do whatever we can to prevent it from becoming a second-tier constitutional right,” he said.
Except Alito forgot to outline any way in which bigoted speech has been limited. Religious conservatives are still just as free to denounce same-sex marriage as liberals are to call them bigots. That’s how free speech works.
Unless, of course, Alito was purposely conflating free speech with the freedom to discriminate in public accommodations, which would call into question federal law as stipulated in the Civil Rights Act of 1964 and later upheld by the Supreme Court.
But Alito’s pro-discrimination advocacy wasn’t his only partisan play. He also decried any future efforts by congressional Democrats to limit the court’s right-wing reign over a center-left country, comparing it to autocratic intimidation. Recounting a story told by one Supreme Court justice from an authoritarian country, Alito said, “He looked out the window and saw a tank pull up and pulling its gun toward the court, message was clear: Decide the right way, or the courthouse might be, shall we say, ‘restructured.'”
Liberal Democratic lawmakers, as we all know, are the first to reach for their weaponry when conflicts arise. Seriously, the suggestion, while at least comprehensibly stated in full sentences, is positively Trumpian in its estrangement from reality.
Perhaps fittingly, Alito also directed a good portion of his speech at skewering current public policies intended to limit spread of the coronavirus. “The pandemic has resulted in previously unimaginable restrictions on individual liberty,” he said. “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
The restrictions, Alito argued, were the fault of “early 20th century progressives and the New Dealers of the 1930s” who prized “lawmaking by executive fiat rather than legislation” and eventually became too deferential to “experts,” which led to policy-making becoming more “scientific.” Egad—science!
Apparently Republicans—the party of The People—adore stewarding public opinion for high-minded legislative outcomes that eschew rule by executive fiat. Honestly, it’s hard to even unpack that sequence of revisionism except to say that someone seems a little touchy about FDR’s campaign to limit the conservative impulses of a court that was, in fact, wildly out of step with public opinion at the time.
In any case, no more pretending, as if there was ever any question. As Slate’s legal writer Mark Joseph Stern wrote, “That was easily the most political speech I’ve ever seen delivered by a Supreme Court justice. Wow. Same-sex marriage, guns, abortion, contraception, persecution of the Federalist Society … he really squeezed it all in there. Yikes.”