Supreme Court Justice Samuel Alito gave a very illuminating post-election speech recently to the 30th Anniversary Gala of the conservative Federalist Society.
Justice Alito's remarks to the assembled cream of the right-wing legal establishment -- from Robert Bork to Texas Senator-elect Ted Cruz to partners at dozens of big law firms (many of which bring cases before the Justice) -- hit all the usual notes. Much to the amusement of the crowd, he made fun of his controversial constitutional law professor at Yale, Charles Reich, who famously embraced the youth counterculture, wrote a best-selling critique of American society in 1970, and left the law school in 1974 to move to San Francisco.
As AP's Mark Sherman reported:
He quoted from Reich's bestselling "The Greening of America," in which the author painted a frightening picture of a disintegrating society and called the era a "moment of utmost sterility, darkest night, most extreme peril."
Here, Alito paused and, to the delight of a crowd dismayed by Obama's re-election, added, "So our current situation is nothing new."
"Our current situation." What do you suppose the Justice means by that? Any notion that there is a distinction between the motives and goals of the cadre of conservative justices on the Supreme Court and the right-wing forces that put them there dissolves when words like this are uttered. The Roberts Court, Alito included, has transparently become the judicial outpost of a political movement with political goals. Alito is saying to the Republican politicians, think-tank funders, corporate lawyers, and media types assembled before him that he is, first and foremost, one of them.
Although most of the press coverage of this speech has focused on Justice Alito's full-throated defense of the Citizens United decision and his rationalization of the broadest possible interpretation of the corporate personhood concept (an argument effectively dismantled by the New York Times editorial page), there was another moment in Alito's remarks that I think was more important -- and scary.
As Todd Ruger reports in the Blog of the Legal Times:
"It is hard not to notice that Congress' powers are limited," Alito said. "And you will see there is an amendment that comes right after the First Amendment, and there's another that comes after the Ninth Amendment. Those are just a couple of examples."
There it is: a shout-out to the Second and Tenth Amendments. Those references aren't dog whistles to the crowd at the gala -- they're air-raid sirens. It makes one wonder; did Justice Alito just come out as a Tenther?
Josh Blackman's blog report on the speech indicated that Alito went through a recitation of a series of cases designed to show the Obama administration favors vast federal powers, then quotes Alito as saying that after looking at these examples, the "beginning of a picture is seen." His report paraphrases the Justice as saying that, "The arguments [by Obama's solicitors general] begin to suggest a vision of society in which the federal government towers over people, and federalism offers no refuge. Government follows every move, and takes away control of religious institutions. This is not America, or the society our Constitution contemplates."
This kind of fevered language is often heard on Fox News, right-wing radio, or from the mouths of Tea Party candidates. But this is a justice of the Supreme Court laying out an agenda that is indistinguishable from that expressed by the growing Tenther movement.
The Tenthers rely on a pinched and largely discredited interpretation of the Tenth Amendment, which would have the effect of rendering invalid almost all of the social, economic, and civil rights progress of the past century. If they had their way, the federal government would be severely weakened and programs like Social Security, Medicare, worker health and safety regulations, environmental controls, and much more would be gone. This used to be a constitutional theory limited to a radical fringe, but Samuel Alito chose to bring it up himself. For those of us who cherish the rights and progress won with so much effort from the New Deal to today, that quote from Alito's speech isn't just a throw-away line for the edification of a sympathetic crowd -- it's a threat.
The only question is how far he and his four like-minded allies on the Court will go. Remember, there were five votes to strike down Obamacare via a restrictive view of the Constitution's Commerce Clause before Chief Justice Roberts blinked at the last minute. Next time, we won't be so lucky. That's the message that Justice Alito was giving to the Federalist Society. Be patient, he was saying. Forget the election; we're going to win anyway in the ways that really matter. After all, look how well we did with Citizens United.
Lots of people thought the Supreme Court was -- or should have been -- an issue in the election. But the reverse is just as true. The election was an issue for the Court. Justice Alito's open criticism of the election result ("our current situation") and the Obama administration signals that he intends to do his best to make sure he and his conservative collaborators have the last word.