Justice Alito Warns Of Dire Future For Speech, Religious Liberty

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Kevin Daley Supreme Court correspondent
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Supreme Court Justice Samuel Alito warned that the three most consequential issues facing the Court are free speech, religious liberty and federal agency power.

Alito delivered the opening address at a conference of judicial conservatives and libertarians Thursday. He made the remarks in Washington in connection with a memoriam address honoring the late Justice Antonin Scalia at the Federalist Society’s annual lawyers convention.

The justice began his parenthetical by noting the growing chasm on free speech issues, particularly on college campuses and in the campaign finance area. He singled out the “new orthodoxy” in the American academy, and wondered aloud how college students or faculty would react to a peer wearing a piece of apparel declaring America “a great and good nation,” in what appeared to be a veiled reference to President-elect Donald Trump’s campaign slogan, “Make America Great Again.”

He also called out a constitutional amendment supported by Senate Democrats which would allow Congress and state legislatures to place “reasonable” limits on campaign spending. (RELATED: Justice Alito Remembers Scalia: ‘He Was Uncompromising’)

He expressed grave concern over the future of religious liberty, which he perceives to be in even greater danger than free speech. “It’s not dark yet, but it’s getting there,” he said, in a nod to Nobel-laureate Bob Dylan’s 1997 song “Not Dark Yet.” He went on to discuss a Washington state law which requires individual pharmacists to distribute contraception over their private religious objections. The Court declined to take up a challenge to the law in June, which drew a sharp dissent from Alito. That dissent was joined by Chief Justice John Roberts and Justice Clarence Thomas.

“The bottom line is clear,” Alito wrote. “Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”

He concluded with a brief colloquy on administrative law, calling the structure of government the most important feature of the Constitution. “In recent years we have seen unprecedented pressure on our constitutional structure,” he said, specifically citing the cascade of executive actions which have characterized recent presidencies.

“The executive is making out and out changes to laws passed by Congress,” he said.

Alito returned to Chevron deference, a legal doctrine requiring the courts to defer to a federal agency’s reading of law provided it is reasonable, noting the doctrine’s author, Scalia himself, seriously rethought his position on the matter later in his tenure.

“Agencies are exploiting Chevron to usurp Congress’ lawmaking authority,” he said.

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