Supreme Court Justice Samuel A. Alito Jr. took aim at legal interpretations of a historic Massachusetts lawsuit, appeared to mock Cambridge, and slammed two New England senators as he offered an unusually blunt critique of coronavirus lockdowns and other measures in a speech to a conservative legal group.
Alito’s Thursday address to the Federalist Society, which held its annual convention virtually due to the pandemic, overstepped the usual boundaries for a Supreme Court jurist and could undermine the public’s faith in the court, legal observers said.
“This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.
“I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again.
Alito criticized the use of a 1905 Supreme Court decision in a Massachusetts case to justify COVID-19 restrictions — while taking a dig at Cambridge.
In that case, Jacobson v. Massachusetts, the court upheld the constitutionality of an ordinance requiring smallpox vaccinations during an outbreak of that virus.
“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,” Alito said.
He went on to stress that the historic Massachusetts case involved “a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.”
Gertner said Alito’s warnings about pandemic restrictions sounded like a message intended for president-elect Joe Biden.
“This speech is a shot across the bow to the Biden administration that aims to use its emergency executive powers in the way that Trump did,” she said. “Because what he’s essentially saying is, ‘Watch it. We’re going to start looking at these more critically.’ ”
Laurence H. Tribe, a Harvard Law School professor emeritus, said Alito’s remarks were “extremely unusual” and that it was “injudicious and highly inappropriate” for a Supreme Court justice to comment “on issues that are bound to return to the Court, like same-sex marriage and religious exemptions and restrictions on personal liberty designed to control the spread of COVID-19.”
“He seriously compromised the integrity and independence of his role as a Supreme Court Justice by offering hints and intimations and sometimes all but explicit forecasts of how he would approach matters not yet briefed and argued before him in the context of a specific case or controversy,” Tribe said in an e-mail.
Alito also slammed a brief filed in a gun rights case last year by five senators, including Sheldon Whitehouse of Rhode Island and Richard Blumenthal of Connecticut. In that filing, the senators said the Supreme Court increasingly rules based on politics, undermining confidence in the court, and suggested that the public might demand the court be “restructured.”
Alito called the senators’ threat “an affront to the Constitution and the rule of law” and compared it to an incident he described in an authoritarian country in which a military tank pointed its gun toward a courthouse to intimidate a judge.
“The Supreme Court was created by the Constitution, not by Congress,” Alito said. “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.”
John T. Rice, who teaches at the University of Massachusetts School of Law, said Alito’s argument and concerns others have expressed about “court packing” by expanding the number of justices don’t take into consideration the court’s history.
“The Constitution of the United States creates the Supreme Court and provides that the judicial power of the country shall be vested in the Supreme Court. And the Constitution establishes the office of chief justice. And that is exactly all that the Constitution establishes,” Rice said.
“The way we got to nine justices is the result of expansion and legislation adding seats and taking seats away throughout our history.”
Rice said justices have waded into political controversy in the past, pointing to the late Ruth Bader Ginsburg’s comments about then-candidate Donald Trump prior to the 2016 election.
None of the views Alito expressed are likely to shock those who have read his legal opinions or other public statements, Rice said, but their public airing flies in the face of Chief Justice John Roberts’s efforts to keep the court above the political fray.
“Is there a rule that Justice Alito violated? Is there any recourse against him? No,” Rice said. “But was it wise? No.”