Perhaps the headline is a bit unfair. Justice Samuel Alito firmly — if humorously — told a number of world leaders to pound sand in his speech last week to a religious liberty conference in Rome sponsored by Notre Dame’s law school. Prince Harry wasn’t even the only Brit to get targeted by Alito’s somewhat tongue-in-cheek ire for their criticism of his controlling opinion in the Dobbs case that overturned Roe.
Most of Alito’s commentary focused on the topic at hand, but clearly the international commentary from world leaders … and also Harry … rankled the Supreme Court jurist. Alito wondered why foreign leaders felt as though they had a say on American jurisprudence and the rule of law in the first place.
On that score, Harry might have had a claim to authority now that he lives in the US, but Alito’s purposeful condescension hit its peak in rebutting the resigned royal. The audience laughed right along with Alito’s dry-wit barbs:
“What really wounded me was when the duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine,” Alito said. “Despite this temptation, I’m not going to talk about cases from other countries.”
Alito also skewered Boris Johnson, Emmanuel Macron, and Justin Trudeau:
“I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders, who felt perfectly fine commenting on American law,” the appointee of President George W. Bush declared in his speech, according to a video posted online by the university on Thursday — one week after the address was delivered.
“One of these was former Prime Minister Boris Johnson, but he paid the price,” Alito joked, referring to the conservative British leader’s announcement earlier this month that he planned to step down. “Post hoc ergo propter hoc, right?” the justice added, drawing applause and laughter from the audience to a Latin phrase used to describe a fallacious argument.
Alito, sporting a new beard, went on to note that President Emmanuel Macron of France and Prime Minister Justin Trudeau of Canada “are still in office” despite the salvos they launched at the ruling, which frees U.S. states to impose sharp limits on abortion throughout pregnancy.
Worth noting: the abortion laws in France and the UK would not have been allowed under Roe and Casey. Only Canada and a handful of other countries — North Korea and China among them — allow abortions as far into a pregnancy as the US did before Dobbs, and which were protected by Roe and Casey. That was in fact a point made not by Alito during oral arguments in December, but by Chief Justice John Roberts. That point was also corroborated by an earlier Washington Post fact check.
For that matter, the Dobbs decision doesn’t preclude states from adopting a Roe//Casey abortion regime anyway. All it does is pass the policymaking back to the legislatures, which is where it belongs. It also returns the court to its constitutional role and limits after nearly 50 years as a quasi-legislature on the issue of abortion — and not just abortion, actually.
Perhaps we should ask Trudeau why Canada has the same abortion policies as North Korea and China. If a US president raised that question publicly, Trudeau and internationalists would howl about American imperialism, interference in the affairs of another country, and so on. Why doesn’t that work the other way?
Alito spoke at more length on the main topic of the conference. He urged the audience to protect religious liberty for its transformative value in society as well as its integral role in expanding freedom:
‘Religious liberty has often fueled social reform’ he said, adding: ‘It is not an accident’ that the leaders who moved to abolish slavery were ‘very often men and women of faith.’
Alito spoke of Martin Luther King Jr.’s role as a ‘reverend’ who ‘was able to speak to all American regardless of race’.
He also talked about the relationship between freedom of religion and freedom of speech, asking: If this can be suppressed then ‘what is to stop the state from crushing other forms of expression?’
Religious liberty is ‘so powerful’ it once helped bring down a powerful totalitarian state, he said, going on to speak about the fall of the Soviet Union.
‘During my lifetime the People’s Republic of China did its best to eradicate religion completely, and yet it failed, just like the Roman emperors who tried to outlaw Christianity failed,’ he concluded.
‘In China, there are now more Christians than there are in France or Germany. And if trends continue, the number of Christians in China may surpass those in the US.’
Religious liberty has become an inconvenient value in the US as American policy turns more progressive. When the state expands its role in people’s lives, they intrude on private choices where religious liberty matters — perhaps nowhere as much as in health care. The federalization of health care and the rapid expansion of the bureaucratic state into it has made it a front line for religious freedom of faith-based providers of all types who object to abortions and sex-change operations. Progressives repeatedly attempt to preclude even the discussion of commonly held religious values when it comes to policymaking, usually shrieking historically illiterate arguments about the separation of church and state.
In that sense, Kennedy v Bremerton may well have been the second-most important decision this term from the Supreme Court. Ending the Lemon test on Establishment Clause cases rebalanced the interests in the Constitution for preventing an official state religion with the rights of citizens to free speech and free exercise of religion. It restores a true sense of tolerance, one that allows for a truly diverse range of faiths, beliefs, and perspectives without using the state to shut down expressions of religion over matters of taste.
Gorsuch wrote the controlling opinion in Kennedy, but Alito no doubt has tremendous enthusiasm for its outcome. Here’s the full speech from Rome last week. Maybe I need to figure out how to get assigned to cover the next Notre Dame conference in the Eternal City, eh?