“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,” Alito said.
“One of these was formed [United Kingdom] Prime Minister Boris Johnson. But he paid the price,” Alito joked, to applause from the crowd. Johnson has been embroiled in scandal and this month announced plans to step down.
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Alito spoke July 21 at the Notre Dame Religious Liberty Summit, sponsored by the Religious Liberty Initiative at the university’s law school. It was established in 2020 to promote “religious freedom for people of all faiths through scholarship, events, and the Law School’s Religious Liberty Clinic,” which files briefs at the Supreme Court.
Justices often do not divulge their speaking engagements in advance, and Alito’s became known Thursday after the law school issued a news release and posted a video of the speech on YouTube.
Alito said he was resisting listing examples from other countries whose defense of religious liberty he found insufficient even though he said foreign leaders — he also mentioned French President Emmanuel Macron and Canadian Prime Minister Justin Trudeau — criticized the court’s decision eliminating the federal right to abortion.
The decision sent the regulation of abortion back to the states, and since then a number have greatly restricted the procedure and 11 states have limited abortion after six weeks or effectively banned it, according to abortion rights groups.
The audience laughed at what Alito sarcastically said was the most hurtful criticism, from Britain’s Prince Harry.
“But what really wounded me — 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.
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Alito in speeches often says religious liberty is not treated as respectfully as other constitutional rights. But the just-completed Supreme Court term was nothing short of a complete victory for religious groups. Overturning Roe was a longtime goal of religious conservatives, but separately the court’s six conservative justices consistently sided with protection of religious faith over concerns about government endorsement of religion.
It ruled for a coach disciplined by his school board for midfield prayers after games, said Boston was not free to reject a Christian group’s request to fly its flag at city hall for fear it would appear to be an endorsement of religion if other groups are given the privilege, and said Maine cannot bar religious schools from receiving public tuition grants extended to other private schools.
Still, Alito said some see religious faith as akin to other enthusiasms, such as support for professional sports teams. He questioned whether some of his dissenting colleagues fully grasp the Constitution’s protection of religious freedom.
The justice, who the video shows now sports a beard, offered a hypothetical about three attorneys entering a court that requires the removal of head coverings: a Jew wearing a kippah, a Muslim wearing a headscarf and a man in a Green Bay Packers hat. As to whether the man with the Packers cap must be accommodated the same as the others, Alito said, “For me, the Constitution of the United States provides a clear answer.”
He added: “Some of my colleagues are not so sure. But for me, the text tells the story: the Constitution protects the free exercise of religion, it does not support the free exercise of support for the Packers.” Alito did not say why he thought some of his colleagues might disagree.
Alito said for some, protection of religious freedom is shrunk down to the freedom to worship. “When you step outside into the public square, in the light of day, you had better behave yourself like a good secular citizen,” he said.
Alito said protection of religious liberty is also important for free speech and the freedom of assembly. “Religious liberty and other fundamental rights tend to go together,” he said.
The justices have separated after their rancorous session, of which the Dobbs decision was only one that split the court’s conservatives and liberals. There are signs the discord remains.
Kagan says questions of legitimacy risky for Supreme Court
In an address to a judicial conference last week, liberal Justice Elena Kagan said the court’s legitimacy is threatened when long-standing precedent is discarded and the court’s actions are seen as motivated by personnel changes among the justices.
“If, over time, the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy,” Kagan said at a conference of judges and lawyers in Montana.
She added: “People are rightly suspicious if one justice leaves the court or dies and another justice takes his or her place and all of sudden the law changes on you.”
At a separate event on Thursday, two other justices struck a more conventional and upbeat tone about the court’s work.
In a recorded conversation about civic education, Justices Sonia Sotomayor and Amy Coney Barrett talked about their efforts to work across differences with colleagues by making personal connections at court lunches and birthday celebrations.
“Every single one of my colleagues is equally passionate about the Constitution, our system of government and getting it right as I am,” Sotomayor said. “We may disagree on how to get there. We often do. But that doesn’t mean I look at them and say, ‘You are bad people.’ I accept that it is a difference of opinion.”
Barrett insisted that the justices have “genuine affection for each other” and said even though she and Sotomayor disagree sometimes, Sotomayor has persuaded her at times to change her initial position. “We do try to work together behind the scenes. We don’t go in and have our minds made up and locked in. We work together a lot and we talk,” Barrett said. “We do change our minds.”
Ann E. Marimow contributed to this report.