The following is an opening paragraph you never expected to see on Deprogramming101.
Believe it or not, Donald Trump’s crack legal team of Rudy Giuliani, Jenna Ellis and the recently removed Sydney Powell has more judicial integrity than a sitting member of the Supreme Court of the United States. While Giuliani and accompany continue to yell “fraud” in front of a crowded strip mall or the ballroom of the Gettysburg Wyndham Hotel, they have not made the same claim in court. Why? Because they know making such assertions without any underlying evidence before a judge would violate attorney standards of practice and could result in sanctions by the court and/or possible discipline by a state bar association.
In contrast, Justice Samuel Alito did the exact opposite. He told the truth during a keynote address to the Federalist Society, where it did not matter, while evading related questions during his confirmation hearing before the Senate Judiciary Committee. In a November 21, 2020 opinion essay, Austin Sarat, associate provost and professor of jurisprudence at Amherst College, wrote:
Alito at his 2006 confirmation hearings promised his political views would be irrelevant to his work on the high court. Then on a federal appeals court, he contended there is a stark difference between being a judge and an advocate who “has the goal of achieving the result that the client wants within the bounds of professional responsibility.” A judge, he said, “doesn’t have an agenda, and a judge has to follow the law.”
In those same hearings, when asked how he would apply this principle to several Supreme Court decisions past and pending, he declined to answer, insisting it was improper for a justice to comment on issues that might come before the court in the future. Fourteen years later, Alito now holds himself up to a different code of conduct. In reference to Alito’s speech to the Federalist Society, Adam Liptak of the New York Times wrote “in an unusually caustic and politically tinged speech, Justice Samuel A. Alito Jr. told a conservative legal group that liberals posed a growing threat to religious freedom and free speech.” Two passages from his remarks are of particular interest.
Just as the COVID restrictions have highlighted the movement toward rule by experts, litigation about those restrictions, has pointed up emerging trends in the assessment of individual rights. This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.
We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.
Now we know why Alito has no history of playing sports in high school or college. Someone so prone to telegraphing a play, with the exception of Babe Ruth, has little, if any, future in amateur or professional athletic endeavors. Therefore, it was no surprise when Alito sided with the majority to vacate restrictions imposed by New York State on gatherings at religious institutions during the recent spike in cases, hospitalizations and deaths from COVID-19. So much for one’s responsibility “to follow the law” as Alito argued in 2006. Perhaps the justice forgot what the First Amendment actually says and why it is called the “Establishment Clause.” To refresh his memory:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
First, CONGRESS did not make a law. Second, the New York order did not discriminate among religions. It applied to churches, synagogues and mosques, and if asked, I am sure Governor Andrew Cuomo would have included covens. Third, the New York order did not prohibit the free exercise of religion. It asked only that religious entities make accommodations to protect the health and safety of the state’s citizenry.
Justice Alito might also take a look at the Tenth Amendment to the Constitution. Again, a reminder.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The last time I looked, there is no language in the Constitution which prohibits a state from taking emergency measures during a health crisis. If such evidence exists, one would think a legal scholar worthy of a seat on the highest court in the land would have presented it in the 5-4 majority decision. So rather than herald this victory for individual and religious rights, if the Federalist Society had any grain of intellectual integrity, it would be decrying this violation of “originalist” or “strict construction” of the Constitution, something they claim is a central criterion for the judges they recommend for appointment to federal benches.
Additionally, Alito and his comrades have opened a Pandora’s Box when it comes to public safety and religious freedom. Alito thinks nine months of limited public gatherings and mask mandates is “severe and prolonged.” Perhaps he forgot to take his Prevagen that day. For the past 19 years I have had strangers x-ray my genitals so I can get on an airplane. Not that I care to, but I have been restricted from smoking in public places beginning with a Surgeon General’s report in 1964. And since 1968, I can be pulled over and issued a ticket for not wearing a seatbelt while driving.
On his September 14, 2015 broadcast of Last Week Tonight with John Oliver, the host demonstrated exactly how easy it is to establish a religious entity theoretically protected under Alito, et. al.’s interpretation of the First Amendment. In a rebuke of churches which promote the prosperity gospel, Oliver legally established and became pastor and CEO of “Our Lady of the Perpetual Exemption,” which its website describes as “a tax-exempt organization that you certainly can’t say is not a church.” In the same spirit, I am considering forming a similar entity, Our Guardian of Subdermal Privacy, which does not believe humans or animals should be subject to body scans. If the Supreme Court truly believes religious liberty trumps (I know) public safety, I look forward to arguing my case in front of these custodians of situational conviction.
But I digress. Why SCOTUM? Because, in an act of cowardice, not one of the five justices who voted to overturn the New York emergency order, including all three recent appointments–Gorsuch, Kavanaugh and Barrett, was willing to admit they wrote the majority opinion. So, rather than SCOTUS, we can expect more hypocritical and likely anonymous decisions to be forthcoming from the Supreme Council of Trump’s Unprincipled Magistrates. Or as Robert Blake might have said on the 1970s detective series about rogue cop Baretta, “If you don’t want to sign, your appointment should not last a lifetime.”
For what it’s worth.