Video and Transcript of Justice Alito’s Keynote Address to the Federalist Society
Today is the second Thursday in November. It feels strange that I am not in Washington, D.C. Every year, for the last fourteen years, I have attended the Federalist Society National Lawyers Convention. It has become an annual pilgrimage for conservative and libertarian lawyers. We pack into the halls of the Mayflower, get gussied up for the banquet at Union Station, and rekindle the vast right wing conspiracy. Alas, this year, we are #togetherapart. The Federalist Society has brought the National Lawyers Convention into the Zoom era. And tonight, Justice Alito delivered the keynote address virtually.
You can watch the address here. Usually, Justice Alito prohibits his remarks to be recorded, so Zoom has some perks. He talks about COVID and religious liberty, the freedom of speech, the Second Amendment, and “bullying” of the Supreme Court by U.S. Senators. I ran the video through the Otter transcription service. I’ve pasted the transcript below the jump, with some annotations. (Usually I would fiercely type and tweet the speech from the banquet table–Zoom has perks!).
First, he discussed how strange it is to deliver this address remotely.
Thank you, Dean, I’m very pleased to have this opportunity to speak to all of you who are attending the Federalist society’s annual lawyers convention via the internet. I’ve given the conventions keynote speech several times before, but today is quite different. On all those occasions, I spoke to a live audience at the big convention dinner. By the time I got up to speak, there had been a cocktail hour, everybody had had the chance to enjoy a glass of wine or two with dinner, and people were in a good mood. Those are optimal circumstances for a speaker, they tend to make the audience a lot more forgiving in its assessment of the speech. Today, I’m talking to a camera, and that feels really strange. And I wondered if anything could be done to alleviate that. If any of you watched any regular season baseball games this year, you will have seen that there were no real people in attendance. But in an effort to make the atmosphere seem a bit more normal, teams placed cardboard cutouts of fans in the seats, and piped in recorded Cheers. I thought for a moment about asking the organizers of the convention to do something like that. But that would only make the setting more surreal. However, if any of you would like to enjoy a beverage in the comfort of your homes, I hope you will feel free to do so. And on the other hand, if any of you feel the urge to throw Rotten Tomatoes, go right ahead, you will only mess up your own screen. If you have watched some of the events of this year’s convention, I hope you found them informative and thought provoking. As in the past, they have featured speakers with a variety of views on important topics.
Second, he discussed the history of the Federalist Society.
Some of those watching tonight may be new to Federalist Society events, and may have heard a lot of misinformation about the society. So let me say a word at the outset about what the society is, what it is not, and why I have been a member for many years. Let me start with what it is not. It is not an advocacy group. Unlike other bar groups, it does not take a position on any issue. It doesn’t propose legislation or lobby or testify before Congress, or file briefs in the supreme court or any other court. It holds events like this convention at which issues are debated and discussed openly and civilly. Anybody can join the society, and anybody can attend events like this convention.
Most members of the society are conservative in the sense that they want to conserve our Constitution and the rule of law. But members members disagree about many important things.
The society started in law schools in the 1980s and now has 200 Law School chapters. And the best law school Deans have expressed appreciation of the society’s contribution to free and open debate. My colleague, Elena Kagan is a prime example. When she was the Dean of Harvard Law School, she spoke at a Federalist Society event and began with these words. I love the Federalist Society. After some applause, she repeat it. I love the Federalist Society, pause. But you are not my people. That is a true expression of the freedom of speech that our Constitution guarantees and that we need to preserve. We should all welcome rational civil speech on important subjects, even if we do not agree with what the speaker has to say.
Third, he discussed increased hostility towards FedSoc, including the proposed rule that would have prevented judges from being members of FedSoc. (I wrote about it here).
Unfortunately, tolerance for opposing views is now in short supply in many law schools, and in the broader academic community. When I speak with recent law school graduates, what I hear over and over is that they face harassment and retaliation if they say anything that departs from the law school orthodoxy. Under these circumstances, Federalist Society law school events are more important than ever. I will have more to say about freedom of speech later, but if this point I want to express appreciation to the many judges and lawyers who stood up to an attempt to hobble the debate that the Federalist Society Foster’s move was afoot to bar federal judges from membership in the society. And if that had succeeded, the next logical step would have been to forbid them from speaking at law school events, and other events sponsored by the society. Four Court of Appeals judges, Amul Thapar, Andy Oldham, Bill Prior, and Greg Katsas, prepared a letter that devastated the arguments of those who wanted to ban membership. The letter was signed by more than 200 judges, including judges appointed by every president, going back to President Ford. And at least for now, the proposal is on hold, we should all express our thanks to these defenders of free speech.
Fourth, he discussed how COVID-19 has affected our current legal order.
The topic of this year’s convention is the rule of law and the current crisis. And I take it that the title is intended primarily to refer to the COVID-19 crisis that has transformed life for the past eight months. The pandemic has obviously taken a heavy human toll, thousands dead, many more hospitalized, millions on employed the dreams of many small business owners dashed. But what has it meant for the rule of law,
I’m now going to say something that I hope will not be twisted or misunderstood. But I have spent more than 20 years in Washington, so I’m not overly optimistic. In any event, here goes. The pandemic has resulted in previously unimaginable restrictions on individual liberty. Now, notice what I am not saying or even implying, I am not diminishing the severity of the viruses threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker. All that i’m saying is this. And I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.
Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial. trials in federal courts have virtually disappeared in many places who could have imagined that the COVID crisis has served as a sort of constitutional stress test. And in doing so it has highlighted disturbing trends that were already present before the virus struck.
Fifth, he discussed the broad delegation to government to deal with “emergencies” and “rule by experts.”
One of these is the dominance of lawmaking by executive Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legisla
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