The conservative justice’s pointed remarks, which he made in a speech to the Federalist Society, reflected thoughts he has expressed in his opinions.
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 liberty and free speech. The remarks, made at the Federalist Society’s annual convention Thursday night, mirrored statements Justice Alito has made in his judicial opinions, which have lately been marked by bitterness and grievance even as the court has been moving to the right. While Chief Justice John G. Roberts Jr. has tried to signal that the Supreme Court is apolitical, Justice Alito’s comments sent a different message Coming as they did just weeks after Justice Amy Coney Barrett succeeded Justice Ruth Bader Ginsburg, giving conservatives a 6 to 3 majority, the remarks alarmed some on the left. But legal experts said there were few clear lines governing what justices may say off the bench. “There’s a difference between what a justice can do and what a justice would be well advised to do,” said Vikram D. Amar, the dean of the University of Illinois College of Law. “I tend to think that John Roberts has a much better instinct toward circumspection.” “Other than an ethical line about prejudging cases and avoiding the appearance of bias,” Professor Amar said, “it’s a matter of what you think a good judge should do and the image a judge should cultivate.” Still, it was jarring, some legal commentators said, to hear political sentiments, even ones echoing judicial opinions, during a webcast aimed at conservative lawyers. “Justice Alito’s speech Thursday was more befitting a Trump rally than a legal society,” said Gabe Roth, the executive director of Fix the Court, a nonprofit group that has called for stricter ethics rules for the Supreme Court. Others said it was unexceptional for justices to describe positions they had already taken in their judicial work. “It’s one thing for a justice to speak publicly about an open issue on which the justice hasn’t yet ruled,” Ed Whelan, the president of the Ethics and Public Policy Center, wrote on National Review’s Bench Memos blog. “It’s a very different — and much less remarkable — thing for a justice to restate positions that he has already formally adopted.” Mr. Whelan noted that Justice Ginsburg had criticized President Trump in an interview during the 2016 campaign for refusing to release his tax returns and went on to sit on cases concerning their disclosure. Justice Antonin Scalia, by contrast, recused himself from a case the Pledge of Allegiance after discussing the case in public.
