Skip to content

Latest Stories

Top Stories

How Justice Alito is openly testing the bounds of judicial conduct

Justice Samuel Alito
Chip Somodevilla/Getty Images
Sarat is associate provost, associate dean of the faculty and a professor of jurisprudence and political science at Amherst College. Aftergut is a former federal prosecutor in San Francisco.

Last week, Justice Samuel Alito delivereda rousing keynote address to the annual convention of the Federalist Society, arguably the nation's most influential conservative legal group.

The speech was starkly different from the guarded public pronouncements that are the usual fare from members of the Supreme Court. Instead, it was a full-throated attack on policies and judicial decisions that, he contended, grant too much power to government agencies charged with protecting public health — and further threaten religious liberties already under assault.

Afterward, one could hardly be blamed for musing on the hypocrisy of Supreme Court nominees who regularly claim they have no political agenda only to pursue such an agenda once they've secured confirmation. It was only last month when the nation witnessed this charade at the Senate Judiciary Committee, with Amy Coney Barrett repeatedly assuring the committee that "I have no mission and no agenda. Judges don't have campaign promises."

Like the newest justice, 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."

Sign up for The Fulcrum newsletter

And when asked if he agreed with a series of Supreme Court rulings, or continued to subscribe to previous criticisms of other decisions, he consistently. refused to answer. He insisted he could not comment on cases or issues that might come before the court, lest he be seen as prejudging them.

Such reticence vanished before the Federalist Society. Alito unburdened himself of grievances, legal and political. And he freely talked about issues already on the Supreme Court docket. He seemed untroubled skating up to the line of ethics rules requiring judges to remain impartial, to avoid any appearance of bias and to avoid public comment on the merits of any pending matter.

About state public health measures attempting to curb the spread of the coronavirus, he observed that "the pandemic has resulted in previously unimaginable restrictions on individual liberty" and asserted that "We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020."

Abandoning the posture he assumed at his confirmation hearings, Alito specifically criticized his own court's recent refusal to stop restrictions imposed by two states to fight Covid-19 — measures, he contended, that "blatantly discriminated against houses of worship."

Those cases reveal what he called "emerging trends in the assessment of individual rights" by the court. "It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right."

The justice proudly proclaimed his belief in the virtues of the 1993 law dubbed the Religious Freedom Restoration Act, even as the court is currently considering a case that could curtail its reach.

And in discussing the 2018 case of a Colorado baker who refused on religious grounds to sell a wedding cake to a gay couple, the justice declared such treatment caused the couple no harm because a nearby baker provided them a "free cake." He professed that view even though a similar issue involving religious freedom and discrimination against same-sex couples is also pending in his courthouse.

Warming to another conservative legal cause celebre, Alito cited what he called the "disturbing trend" of the growing power of federal regulatory agencies. Again, he spoke while the court's docket now has cases testing the authority of the Federal Communications Commission, the Federal Housing Finance Agency and the Federal Trade Commission.

"Every year," the justice complained, "administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarf the statutes enacted by the people's elected representatives." Echoing the Trump administration's paranoia about a "deep state" and its hostility to science, Alito decried what he called "government by executive officials."

These are hardly the words of a justice without an agenda. Indeed, they seem to be a rallying cry for the Supreme Court's newly augmented conservative majority to use its power to curtail the power of government agencies responsible for protecting public health and safety and to advance the libertarian cause.

As Gabe Roth of Fix the Court, a nonprofit group that has called for stricter ethics rules for the Supreme Court, rightly noted, the speech "was more befitting a Trump rally than a legal society." It provides yet another occasion for Americans to wonder whether our judges can be trusted when they claim that they are merely neutral arbiters of the law.

Read More

Isaac Cramer
Issue One

Meet the Faces of Democracy: Isaac Cramer

Minkin is a research associate at Issue One. Van Voorhis is a research intern at Issue One.

More than 10,000 officials across the country run U.S. elections. This interview is part of a series highlighting the election heroes who are the faces of democracy.

South Carolinian Isaac Cramer developed a passion for politics and elections at a young age, witnessing his mother cast her first vote after achieving her long-standing dream of American citizenship. He joined the Charleston County Board of Voter Registration and Elections in 2014 and began serving as its executive director in March 2021. He oversees election administration for more than 300,000 registered voters in South Carolina’s third most populous county. Charleston spans along the state’s southern coast and shares a name with the largest city in the state, where Cramer resides.

Cramer, who is not affiliated with any political party, has received prestigious honors for his extensive efforts to reform election administration and ensure elections are fair and secure. He earned a Clearinghouse Award from the Election Assistance Commission in 2022 and the J. Mitchell Graham Memorial Award from the South Carolina Association of Counties in 2023. He is also a two-time recipient of the state’s Carolina’s Excellence in Elections award. Earlier this summer, he was appointed president of the South Carolina Association of Registration and Election Officials.

Sign up for The Fulcrum newsletter

Keep ReadingShow less
Secret Service agents covering Trump

Secret service agents cover former President Donald Trump after he was wounded in an assassination attempt July 13.

Jabin Botsford/The Washington Post via Getty Images

Violence lives in all of us

Molineaux is the lead catalyst for American Future, a research project that discovers what Americans prefer for their personal future lives. The research informs community planners with grassroots community preferences. Previously, Molineaux was the president/CEO of The Bridge Alliance.

Whenever we or our loved ones are harmed, it is our human tendency to seek vengeance. Violence begets violence. Violent words lead to violent actions, as we’ve witnessed in the assassination attempt on former President Donald Trump.

The violence of the gunman is his alone.

Our response to violence is about us.

Keep ReadingShow less
Sen. Tammy Duckworth and Rep. Don Bacon

Sen. Tammy Duckworth and Rep. Don Bacon won the "Life in Congress" award from the Congressional Management Foundation.

The best bosses in an unusual work environment: Capitol Hill

Fitch is the president and CEO of the Congressional Management Foundation and a former congressional staffer.

Our nation’s capital is known for many things — but good management practices are not among them. Stories regularly surface of bizarre tales of harassment and abuse by members of Congress. An Instagram feed a few years ago unearthed dozens of stories by staff outing less-than-desirable managers and members for their bad practices. But what about the good leaders and good managers?

Like any profession, Congress actually has quite a few exemplary office leaders. And the beneficiaries of these role models are not just their staff — it’s also their constituents. When a congressional office can retain great talent, sometimes over decades, the quality of the final legislative product or constituent service rises immensely.

Keep ReadingShow less
Rep. Gus Bilirakis and Rep. Ayanna Pressley

Rep. Gus Bilirakis and Rep. Ayanna Pressley won the Congressional Management Foundation's Democracy Award for Constituent Accountability and Accessibility.

Official portraits

Some leaders don’t want to be held accountable. These two expect it.

Fitch is president and CEO of the Congressional Management Foundation and a former congressional staffer.

There is probably no more important concept in the compact between elected officials and those who elect them than accountability. One of the founding principles of American democracy is that members of Congress are ultimately accountable to their constituents, both politically and morally. Most members of Congress get this, but how they demonstrate and implement that concept varies. The two winners of the Congressional Management Foundation’s Democracy Award for Constituent Accountability and Accessibility clearly understand and excel at this concept.

Keep ReadingShow less
Woman speaking at a microphone

Rep. Lucy McBath is the first lawmaker from Georgia to win a Democracy Awarrd.

Michael Brochstein/SOPA Images/LightRocket via Getty Images

Surprise: Some great public servants are actually members of Congress

Fitch is the president and CEO of the Congressional Management Foundation and a former congressional staffer.

TheCongressional Management Foundation today announced the winners of the seventh annual Democracy Awards, CMF’s program recognizing non-legislative achievement and performance in congressional offices and by members of Congress. Two members of Congress, one Democrat and one Republican, are recognized in four categories related to their work in Congress.

Americans usually only hear about Congress when something goes wrong. The Democracy Awards shines a light on Congress when it does something right. These members of Congress and their staff deserve recognition for their work to improve accountability in government, modernize their work environments and serve their constituents.

Keep ReadingShow less