31 July 22
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To the justice, “secular society” poses a threat to religious freedom—and state-sponsored indoctrination is the only solution.
It speaks volumes about Samuel Alito that, in the face of international outrage over the impact of this ruling on the lives of millions of women, he centered himself and his own feelings. His snarky little potshots at Prince Harry and Boris Johnson were not so much “jokes” about world leaders as personal petulance over international criticism, cloaked in the insistence that Alito doesn’t care what these world leaders think of him.
But to focus on Alito trolling American women, reproductive justice advocates, his liberal colleagues on the bench, and his international critics is to take his feeble bait. Alito is quite transparent about the fact that he delights in disapproval. He invites it! He welcomes it! His “comedy” is actually just a distraction from his gleeful effort to decimate whatever remaining legitimacy the Supreme Court still possesses in the eyes of the secular, liberal world order. Focus on that fact and there is really nothing hilarious to report from Rome at all.
For starters, there is the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court. We only found out about this speech a week later when Notre Dame released the video, because the justices have no obligation to publicize or record their public speeches. The Rome event’s sponsor, Notre Dame Law School’s Religious Liberty Initiative, was founded about four months before Justice Amy Coney Barrett joined the Supreme Court in 2020. As Gabe Roth of Fix the Court, a nonprofit that promotes judicial ethics reforms, noted in an email Thursday, RLI and its affiliated professors “have filed amicus briefs in several SCOTUS cases, and they have a near-perfect record.” (Naturally, these professors filed a brief in Dobbs v. Jackson Women’s Health Organization urging the reversal of Roe.) As Roth further pointed out, we won’t know if RLI financed the trip until mid-June 2023, when it must be disclosed under current law. For now, the image of a tuxedo-clad Alito chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.
It’s no wonder that public confidence in the Supreme Court has plummeted to historic lows. A new Marquette poll shows the high court with a 38 percent approval rating, down from 60 percent last July; a recent Gallup poll shows that just 25 percent of Americans are very confident in the court.
The conservative justices, though, can’t hear the alarm bells over the cacophony of the trumpets of jubilee playing in their ears. Justice Clarence Thomas used a public speech this past spring to insult Chief Justice John Roberts and his colleagues. And with his Rome speech, Alito ripped away even the pretense that he cares about public regard for the institution. Quite the opposite. He clearly revels in the plummeting approval ratings and the international and domestic loathing. He takes it as a sign that his religious liberty project matters: The more the godless, or as he put it, the adherents of “the new moral code,” hate him, the more certain he is that he is correct.
Which brings us, of course, to the godless, whom Alito believes must be educated, by him, about their own ignorance. He concluded his speech paraphrasing a quote from St. Augustine’s Confessions (“Our hearts are restless until we rest in God”) and closed with the promise that “the champions of religious liberty, who ‘go out as wise as serpents and as harmless as doves’ can expect to find hearts that are open to their message.”
In case this fact wasn’t already clear from his jurisprudence, Alito boasted that his vision of free exercise centers on proselytization and state-sponsored indoctrination. (It is ironic that, despite Pope Francis’ warning against “proselytism,” Alito has identified it at the indispensable core of free exercise.) The justice also fretted that in “economically advanced countries,” religious liberty faces a “challenge”: Our “increasingly secular society,” the justice asserted, is in the midst of “a turn away from religion.”
One might reasonably wonder why Alito would frame secularism as a threat to religious freedom. Plainly, the Framers of the First Amendment did not share this view: They quite deliberately created a secular government through the establishment clause while enshrining an individual right to religious liberty through the free exercise clause. To them, secularism was not a menace to religion, but a crucial component of it: History taught them that once the government got involved with matters of faith, it harmed both church and state.
Alito sees things differently. “Polls show a significant increase in the percentage of the population that rejects religion or thinks it’s just not all that important,” he told the crowd in Rome. “And this has a very important impact on religious liberty, because it is hard to convince people that religious liberty is worth defending if they don’t think that religion is a good thing that deserves protection.” He continued:
There’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors. The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection. And that will not be easy to do.
That “new moral code”? It’s a thinly veiled reference to the progressive values that define a flourishing liberal democracy: LGBTQ rights, women’s equality, secular public education, a humane criminal justice system—everything Alito despises. It’s worth noting that the targets of his “jokes” span the ideological spectrum, from a conservative (Johnson) to a centrist (Macron) to a liberal (Trudeau). Yet they all defended fundamental reproductive rights after Dobbs. And to Alito, this fact illustrates the atheistic corruption of contemporary society, regardless of politics; a godless consensus that faith-based convictions held by some should not dictate the laws that govern us all.
If you are not very frightened by the prospect of a Supreme Court justice crossing the ocean in order to quote the Gospels to religious adherents of his own faith, who have business before the court, as he excoriates all who do not share his personal view of the primacy of religion as an organizing force in a political democracy, it’s difficult to know what could alarm you. The Framers attempted to strike a careful balance between religious liberty and secular moral values. Alito would like you to know that for the foreseeable future, the latter is the enemy, and will be vanquished and mocked.
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