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      'This is not justice': supreme court liberals slam Trump's federal executions

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      The supreme court justices Sonia Sotomayor and Stephen Breyer have excoriated the Trump administration for carrying out its 13th and final federal execution days before the president leaves office.Dustin John Higgs died by lethal injection at the federal correctional institute in Terre Haute, Indiana, on Friday night, after his 11th-hour clemency appeal was rejected.Higgs, 48, was convicted of murdering three women at a Maryland wildlife refuge in 1996, even though it was an accomplice who fired the fatal shots. Willis Haynes was convicted of the same crime but sentenced to life.“This was not justice,” Sotomayor, a Barack Obama appointee, wrote in an order issued late on Friday.Sotomayor, who was critical of the Trump administration’s July 2019 announcement that it would resume federal executions after a two-decade hiatus, condemned what she saw as “an unprecedented rush” to kill condemned inmates. All 13 executions have taken place since July 2020.The government executed more than three times as many people in the last six months than in the previous six decades“To put that in historical context, the federal government will have executed more than three times as many people in the last six months than it had in the previous six decades,” she wrote.“There can be no ‘justice on the fly’ in matters of life and death,” Sotomayor added. “Yet the court has allowed the United States to execute 13 people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.”Breyer, a fellow liberal on the nine-justice high court, was equally scathing, naming each of the 13 executed prisoners and noting a lower court’s observation that Higgs had significant lung damage. The lethal injection of pentobarbital, Breyer said, would “subject him to a sensation of drowning akin to waterboarding”.He said the court needed to address whether execution protocols risked extreme pain and needless suffering and pressured the courts into last-minute decisions on life or death.“What are courts to do when faced with legal questions of this kind?” he wrote. “Are they supposed to ‘hurry up, hurry up?’”Breyer went further than Sotomayor by questioning the constitutionality of the death penalty, the first member of the current panel to do so. The third liberal justice, Elena Kagan, also dissented in the Higgs case but did not give an explanation.Higgs’s petition for clemency said he had been a model prisoner and dedicated father to a son born after his arrest. He had a traumatic childhood and lost his mother to cancer when he was 10, it said.He was convicted in October 2000 by a federal jury in Maryland for the first-degree murder and kidnapping in the killings of Tamika Black, 19; Mishann Chinn, 23; and Tanji Jackson, 21. Although Haynes shot the women, Higgs handed him his gun.“He received a fair trial and was convicted and sentenced to death by a unanimous jury for a despicable crime,” the US district judge Peter Messitte wrote in December.Arguably the most high-profile execution of the Trump administration came just days ago when Lisa Montgomery received a lethal injection at Terre Haute and became the first woman put to death by the federal government almost seven decades.Her lawyer accused the Trump administration of “unnecessary and vicious use of authoritarian power”.Many believe officials rushed to complete a series of executions before Joe Biden is inaugurated on 20 January. Biden has stated his desire to have the death penalty abolished at federal and state level. More

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      Joe Biden to nominate Merrick Garland for next US attorney general

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      Joe Biden will nominate the federal appeals judge Merrick Garland to be the next US attorney general, a transition official for the president-elect said on Wednesday, a choice most Americans know as the supreme court nominee of Barack Obama who was memorably blocked by Republicans.Garland, 68, serves as a judge on the US court of appeals for the District of Columbia circuit. Obama, a Democrat, nominated him to the supreme court in 2016 while Biden was vice-president, but the Republican-controlled US Senate refused to hold hearings on the nomination.Biden, who takes office in two weeks, also intends to nominate justice department veterans Lisa Monaco as deputy attorney general and Kristen Clarke as the assistant attorney general to the civil rights division, the official said.During his election campaign, Biden pledged to take steps to end racial disparities in sentencing by eliminating mandatory minimum sentences, ending the use of the federal death penalty and restoring the justice department’s role of investigating and holding police departments accountable for “systemic misconduct”.While many of these initiatives would require approval from Congress, Garland as attorney general will still have significant power to address these topics through changes in policy, such as by instructing prosecutors not to seek the death penalty or to make charging decisions that will not trigger mandatory minimums.The news came as Democrats looked set to win two US Senate seats up for grabs in Georgia runoff elections held on Tuesday, which would give the party control of both houses of Congress and give Biden more leeway to enact his agenda.Garland, who has served on the federal appeals bench since 1997, is no stranger to the justice department.Before becoming a judge, he worked as a federal prosecutor where he helped secure a conviction against Timothy McVeigh for the 1995 Oklahoma City bombing that killed 168 people. He was also on the team that helped secure a conviction of former District of Columbia mayor Marion Barry for cocaine possession.Garland held other key posts at the justice department, including serving as principal deputy associate attorney general to the deputy attorney general, Jamie Gorelick, starting in 1994.Obama nominated Garland in March 2016 to replace the long-serving conservative justice Antonin Scalia, who died on 13 February 2016. But the then Senate majority leader, Mitch McConnell, a Republican, refused to consider the nomination on the grounds it should not occur in a presidential election year.That stance, assailed by Democrats at the time, came under further criticism two months before the 2020 presidential election, when McConnell rushed to confirm Donald Trump’s nominee, Amy Coney Barrett, to fill the vacancy of the late liberal Justice Ruth Bader Ginsburg.While serving as attorney general under Trump until last month, William Barr faced criticism for his willingness to intervene in criminal cases in ways that benefited Trump’s political allies, such as Michael Flynn and Roger Stone. More

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      Biden wants to fill federal court seats – but he needs to win the Senate first

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      During the disastrous first presidential debate in September, Donald Trump mocked Barack Obama, and Joe Biden by extension, for leaving office with so many federal court seats unfilled.“I’ll have so many judges because President Obama and him left me 128 judges to fill,” Trump said, slightly inflating the 105 vacancies he inherited. “When you leave office, you don’t leave any judges. That’s like, you just don’t do that … If you left us 128 openings, you can’t be a good president.But as is often the case with Trump’s attacks, there is much more to the story than that. It is true that Trump inherited nearly twice as many federal court vacancies as Obama did in 2009. However, Democrats blamed the high number of vacancies on what they described as an unprecedented level of obstruction from Republicans after they took control of the Senate in 2015.Over Trump’s lone term as president, he and the Senate majority leader, Mitch McConnell, have successfully remade the federal judiciary, and Democrats are anxious to confirm liberal judges once Biden takes office. But some Democratic lawmakers are already voicing concern that Republicans will once again obstruct judicial nominations if they keep the Senate by winning at least one of the Georgia runoff races next month.Dick Durbin, who is seeking to become the top Democrat on the Senate judiciary committee, raised that concern in late November, predicting Biden would have “very little” impact on the federal judiciary if Republicans maintain control of the chamber.“If the last two years of the Obama administration were any indication, they’ll freeze them out,” Durbin told Politico. “Hope springs eternal, but I believe in history.”Daniel Goldberg, the legal director of the progressive Alliance for Justice, said Durbin’s comments underscored the importance of the Georgia Senate elections. If Democrats were to win both of the 5 January runoff races, the Senate would be 50-50, and Vice-President-elect Kamala Harris could provide a tie-breaking 51st vote.“I think Senator Durbin just made clear how important the Georgia elections are. The stakes could not be higher,” Goldberg said.If Republicans were to win at least one of the Georgia races and keep control of the Senate, Chuck Grassley is expected to chair the judiciary committee, and the Iowa senator would have the ability to block Biden’s nominees from receiving hearings.“If Grassley decides to play hardball, he could just not bring them up for hearings, and there’s nothing the other side can do,” said Josh Blackman, a professor at South Texas College of Law Houston and an adjunct scholar at the libertarian Cato Institute.That possibility is distressing to Democrats, who have watched with dismay as the Senate has approved more than 200 of Trump’s judicial nominees since 2017. While Obama was able to have 55 of his nominees to the federal appeals courts approved over eight years, 54 of Trump’s nominees have been confirmed over just four years. Roughly a quarter of all trial-level federal judges are now Trump appointees.Risk for RepublicansJosh Blackman also warned there could be potential consequences for Republicans if they choose to “play hardball” with Biden’s nominees. “If the Democrats take the Senate in 2022, they could just fill the vacancies then, so you may get more moderate nominees now to fill the void,” Blackman said. “If you wait two more years, they might become less moderate.”That calculus may be part of why some Democrats are more optimistic than Durbin about the likelihood of Biden’s judicial nominees being confirmed.“I think the dynamic is very different than the dynamic with Donald Trump as president,” said Russ Feingold, a former Democratic senator from Wisconsin. “Having served in the Senate for 18 years, 16 years on the judiciary committee, I can tell you people back home want those seats filled. And there is pressure from newspapers, from the legal community when that doesn’t happen.”Feingold, the president of the American Constitution Society (ACS), argued Biden’s team has also prioritized judicial nominations in a way that the Obama administration didn’t.“Because of the economic situation and the need to pass healthcare, this didn’t get the attention it deserved” during Obama’s presidency, Feingold said. “I believe the Biden transition and the Biden administration will give it the attention it deserves and make it a higher priority.”The ACS has already provided Biden’s team with extensive lists of potential nominees, in the hope of ensuring a smooth nomination process once a seat on the federal judiciary opens up.“It’s not just getting past McConnell,” Feingold said. “It’s being ready and getting those names moving and being ready when there are vacancies.”Legal experts argue that, if McConnell were to blockade Biden’s judicial nominees, the repercussions for the country would be severe. Not only would courts probably struggle to handle their caseloads with vacancies piling up, but the potential standoff could jeopardize the reputation of both the federal judiciary and the Senate.“The American people just repudiated Donald Trump, and they elected Joe Biden to the presidency, and one of the critical roles of the presidency is nominating individuals to sit on our federal courts,” Goldberg said. “I think what the American people expect is the Senate to not have one set of rules for Donald Trump and one set of rules for Joe Biden.”Although Feingold is more optimistic than Durbin about Biden’s judicial nominees receiving hearings, he acknowledged it was likely to be a hard-fought fight. If Democrats lose the Senate, Feingold said, they should not wallow but instead prepare for battle.“I understand it will be a challenge, a tremendous challenge that will involve a lot of negotiating, should the Democrats not be able to control the Senate,” Feingold said. “But it’s a challenge that I think can be met … We shouldn’t despair. We should be ready for the fight.” More

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      Supreme court rejects Trump-backed Texas lawsuit aiming to overturn election results

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      The US supreme court has unanimously rejected a baseless lawsuit filed by Texas seeking to overturn the presidential election result, dealing the biggest blow yet to Donald Trump’s assault on democracy.In a brief, one page order, all nine justices on America’s highest court dismissed the longshot effort to throw out the vote counts in four states that the president lost: Georgia, Michigan, Pennsylvania and Wisconsin.The decision hammers another nail in the coffin of Trump’s increasingly desperate effort to subvert the will of the people and deny Joe Biden the presidency.The suit filed by Ken Paxton, the Texas attorney general, sought to invalidate the results in four swing states, asking the court to extend the deadline for election certification so alleged voting irregularities could be investigated.It was backed by Donald Trump, 17 other states and 126 Republicans in the House of Representatives – more than half the caucus – including the House minority leader, Kevin McCarthy of California, and the minority whip, Steve Scalise of Louisiana.Trump had long expressed hope that a disputed election would go before the supreme court, to which he appointed three justices during his term, ensuring a 6-3 conservative majority. Earlier on Friday he tweeted: “If the Supreme Court shows great Wisdom and Courage, the American People will win perhaps the most important case in history, and our Electoral Process will be respected again!”But hours later, his hopes of a political miracle were all but extinguished. The supreme court wrote: “The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.”Officials in Michigan, Pennsylvania, Georgia and Wisconsin had derided the suit as a publicity stunt. More than 20 other attorneys general from states including California and Virginia also filed a brief on Thursday urging the court to reject the case.Josh Shapiro, the attorney general of Pennsylvania, welcomed the court’s ruling. “Our nation’s highest court saw through this seditious abuse of our electoral process,” he tweeted. “This swift denial should make anyone contemplating further attacks on our election think twice.”Democrats in Congress also expressed gratitude. Eric Swalwell of California tweeted: “The Supreme Court, a mix of conservative and liberal members, united to defend your vote against @realDonaldTrumpand his democracy deniers in Congress.”And Senator Ben Sasse, one of relatively few Republicans to acknowledge Biden’s victory, signalled that it was time for the party and government to move on. He said: “Since Election Night, a lot of people have been confusing voters by spinning Kenyan Birther-type, ‘Chavez rigged the election from the grave’ conspiracy theories, but every American who cares about the rule of law should take comfort that the Supreme Court – including all three of President Trump’s picks – closed the book on the nonsense.”Courts have dismissed numerous of lawsuits and appeals by the Trump campaign and its allies in various states. William Barr, the attorney general and a staunch Trump ally, has said the justice department uncovered no evidence of widespread voter fraud that could change the outcome of the election.Saturday will mark the 20th anniversary of the court resolving the 2000 election in Republican George W Bush’s favour but that was a much closer contest that came down to one state: Florida. Biden gained 306 votes in the electoral college – the same as Trump in 2016 – and leads the national popular vote by 7m.Some Democrats have accused Trump and his Republican backers of sedition. Chris Murphy, a senator for Connecticut, said in a floor speech on Friday: “Those who are pushing to make Donald Trump president for a second term, no matter the outcome of the election, are engaged in a treachery against their nation.” More

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      Nearly two-thirds of House Republicans join baseless effort to overturn election

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      More than 120 Republican members of the US House of Representatives formally asked the US supreme court this week to prevent four swing states from casting electoral votes for Joe Biden to seal his victory in the November election, a brazen move that signals how the Republican party has embraced Donald Trump’s baseless attacks on the American electoral system.The request from 126 GOP members – nearly two-thirds of the Republican caucus – came in support of a lawsuit Texas filed earlier this week that sought to block the electoral votes in Michigan, Pennsylvania, Wisconsin and Georgia, all states Biden won in November. The lawsuit also won support from top House Republicans.The suit was ultimately rejected by the supreme court on Friday. The US constitution gives states clear authority to set their own election and does not give other states the right to interfere. Texas’s argument in the suit was also based on unsupported claims of fraud that have been dismissed in lower courts.“The lawsuit has so many fundamental flaws that it’s hard to know where to start. It misstates basic principles of election law and demands a remedy that is both unconstitutional and unavailable,” Lisa Marshall Manheim, a law professor at the University of Washington, wrote in an email. “At core, it’s an incoherent amalgamation of claims that already failed in the lower courts.”Despite its ultimate failure the lawsuit represented a troubling case that was unprecedented in American history: a quest to overturn a presidential election on the basis of unsubstantiated claims by an incumbent who soundly lost his re-election bid.It also became a test of fealty for the president’s party that pitted Republican governors, lawmakers and elected officials against one another.One supreme court brief, filed by prominent Republicans in opposition to the Texas lawsuit, said the arguments “make a mockery of federalism and separation of powers”.Among the 126 lawmakers who signed on to the brief is a particularly puzzling group: 19 Republican members of Congress who represent districts in Pennsylvania, Michigan, Georgia and Wisconsin.Those members all appeared on the same ballot as the presidential candidates and all but one were elected under the same rules to which they are now objecting.(Meanwhile, Doug Collins, a Georgia congressman, ran for a US Senate seat and lost. Collins conceded his race, thereby accepting his defeat in a statewide election, and was later chosen by the Trump campaign to lead its recount effort in the state.)By signing on to the brief, those lawmakers are essentially arguing that their own results could have been tainted by the same irregularities they say cost Trump the election in their state.The Guardian contacted the offices of all 18 of those Republicans who won re-election to ask if they believed there should be further investigation into their electoral victories in November. None of them responded to a request for comment.Most of the lawmakers who supported the effort are far-right conservatives from deep red districts that voted for Trump. But collectively, their support for the lawsuit meant that more than a quarter of the House, including the California congressman Kevin McCarthy, the Republican minority leader, believe the supreme court should invalidate the votes of tens of millions of Americans.Seventeen Republican attorneys general have also signed on in support of the last-ditch legal bid to overturn the 2020 presidential contest before states’ electors meet on Monday to officially declare Biden the victor.Biden won the election with 306 electoral votes, the same number that Trump won in 2016, and he leads the popular vote by more than 7 million. The four states targeted by the Texas lawsuit represent 62 electoral votes.Biden soundly defeated Trump in Michigan and Pennsylvania, part of the “blue wall” that Trump shattered in 2016. Biden also clawed back a third “blue wall” state – Wisconsin – while eking out a surprise victory in Georgia, where multiple recounts have affirmed his win despite an audacious attempt by the president to pressure the Republican governor and secretary of state to reverse the result.Dozens of lawsuits brought by Trump’s campaign and allies in state and federal court were unsuccessful, with the cases so lacking in evidence of the widespread voter fraud they alleged that judges summarily dismissed, derided and even denounced them as meritless. Election law experts have also roundly criticized the Texas lawsuit, pointing to what they say are substantial legal flaws in the argument brought forth by the state’s Republican attorney general, Ken Paxton.Paxton, a staunch ally of the president, is under indictment in a long-running securities fraud case and faces a separate federal investigation related to allegations that he abused the power of his office in connection with a political donor. He has denied the allegations. Yet Paxton’s attempts to override the election results have raised speculation that he may be angling for a presidential pardon, though he insists that is not his motivation. More

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      Supreme court rejects Republican bid to overturn Biden's Pennsylvania victory

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      [embedded content]
      The US supreme court on Tuesday turned away a long-shot bid by Republicans to overturn the election results in Pennsylvania, where Joe Biden defeated Donald Trump in the 2020 race.
      The suit, filed on behalf of Mike Kelly, a Republican congressman from Pennsylvania, took issue with a 2019 state law that adopted no-excuse absentee voting, and argued that the expansion of mail-in voting was illegal.
      Several courts, including the Pennsylvania supreme court, had already denied the request, noting that Kelly waited until after the 2020 election to file his suit when the law was in place well before the election.
      The case is the first piece of 2020 election litigation to reach the US supreme court, which has a 6-3 conservative majority including three Trump appointees. But the decision is not a surprise. As is customary with emergency requests, the supreme court did not offer an explanation for its decision. There were no noted dissents.
      Pennsylvania was one of the pivotal states in the election, with Biden, a Democrat, defeating Trump after the Republican president won the state in 2016. State officials had already certified the election results.
      Trump has falsely claimed that he won re-election, making unfounded claims about widespread voting fraud in states including Pennsylvania. Democrats and other critics have accused Trump of aiming to reduce public confidence in the integrity of US elections and undermine democracy by trying to subvert the will of the voters.
      “This election is over. We must continue to stop this circus of ‘lawsuits’ and move forward,” the Pennsylvania attorney general, Josh Shapiro, a Democrat, wrote on Twitter.
      The supreme court also must decide what to do with another election-related case brought on Tuesday. Republican-governed Texas, hoping to help Trump, mounted an unusual effort to overturn the election results in Pennsylvania and three other states – Georgia, Michigan and Wisconsin – by filing a lawsuit against them directly at the supreme court.
      The Republican plaintiffs argued that the universal, “no-excuse” mail-in ballot program passed by the Republican-controlled Pennsylvania legislature in 2019, enabling voters to cast ballots by mail for any reason, violated the state’s constitution.
      Biden won Pennsylvania by 80,000 votes and received a much higher proportion of the mail-in votes than Trump. Many more people voted by mail this year because of health concerns prompted by the coronavirus pandemic as they sought to avoid crowds at polling places.
      Ahead of the election, Trump urged his supporters not to vote by mail, making groundless claims that mail-in voting – a longstanding feature of American elections – was rife with fraud.Pennsylvania said in a court filing that the Republican challengers were asking the justices to “undertake one of the most dramatic, disruptive invocations of judicial power” in US history by nullifying a state’s certification of its election results.
      The state said most of what the challengers had sought was moot because the election results already were certified and what they were really wanted was for “the court overturn the results of the election”.
      Trump’s campaign and his allies have lost in a stream of lawsuits in key states won by Biden, also including Georgia, Michigan, Wisconsin and others. Judges have rejected sweeping assertions of voting irregularities.
      Biden has amassed 306 electoral votes – exceeding the necessary 270 – compared to 232 for Trump in the state-by-state electoral college that determines the election’s outcome, while also winning the national popular vote by more than 7m votes.
      Tuesday represents a “safe harbor” deadline set by an 1887 US law for states to certify presidential election results. Meeting the deadline is not mandatory but provides assurance that a state’s results will not be second-guessed by Congress. After this deadline, Trump could still pursue lawsuits seeking to overturn Biden’s victory but the effort would become even more difficult.
      Reuters contributed to this report More

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      Texas sues four states over election results in effort to help Donald Trump

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      [embedded content]
      The state of Texas, aiming to help Donald Trump upend the results of the US election, decisively won by Joe Biden, said on Tuesday it has filed a lawsuit against the states of Georgia, Michigan, Pennsylvania and Wisconsin at the US supreme court, calling changes they made to election procedures amid the coronavirus pandemic unlawful.
      The extraordinary and probably long-shot lawsuit, announced by the Republican attorney general of Texas, Ken Paxton, was filed directly with the supreme court, as is permitted for certain litigation between states.
      The supreme court has a 6-3 conservative majority, including three justices appointed by Trump.
      The lawsuit represents the latest legal effort intended to reverse the Republican president’s loss to Democratic candidate Biden in the 3 November election, which had appeared to be running out of steam after dozens of losses by the Trump campaign in its court challenges over the past month.
      Republican-governed Texas in the lawsuit accused election officials in the four states of failing to protect mail-in voting from fraud, thus diminishing “the weight of votes cast in states that lawfully abide by the election structure set forth in the constitution”.
      State election officials have said they have found no evidence of such fraud that would change the results, and local and national officials have declared it the most secure election in US history.
      There was an increase in voting by mail in the election due to the pandemic, as many Americans stayed away from polling places to avoid the spread of Covid-19.
      Texas is asking the supreme court to block the electoral college votes in the four states – a total of 62 votes – from being counted.
      Biden has amassed 306 electoral votes – exceeding the necessary 270 – compared with 232 for Trump in the state-by-state electoral college that determines the election’s outcome, while also winning the national popular vote by more than 7m votes.
      Texas also is asking the supreme court to delay the 14 December deadline for electoral college votes to be cast.
      Paul Smith, a professor at Georgetown University’s law school, said Texas did not have a legitimate basis to bring the suit.
      “There is no possible way that the state of Texas has standing to complain about how other states counted the votes and how they are about to cast their electoral votes,” Smith said.
      Trump’s campaign and his allies have pursued unsuccessful lawsuits in Georgia, Michigan, Pennsylvania, Wisconsin and other states, making unfounded claims of widespread election fraud. Judges appointed under Democratic and Republican administrations, including Trump’s, have ruled against the president’s campaign, often in excoriating tones.
      Trump lost those four states after winning them in 2016.
      The supreme court is not obligated to hear the case and has said in previous decisions that its “original jurisdiction” that allows litigation between states to be filed directly with the nine justices should be invoked sparingly. More

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      Justice Alito takes aim at abortion rights, gay marriage and Covid rules

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      The inability of people to say, without fear of being branded as bigots, that marriage is exclusively between a man and a woman is threatening to make freedom of speech “a second-tier constitutional right”, supreme court justice Samuel Alito said at a virtual conference on Thursday.In a bleak address, Alito took aim at abortion rights, same-sex marriage, gun control and other conservative bugbears.The remarks were made to the Federalist Society, the conservative legal group that has helped Donald Trump remake the judiciary in the last four years.While supreme court justices have in the past waded into politics in public forums, Alito’s 30-minute speech stood out for its provocative engagement on fronts in the culture wars that had not seemed to be particularly hot, at least before the confirmation of Justice Amy Coney Barrett last month.Alito’s speech fueled concerns that Barrett’s elevation, which established an ironclad 6-3 conservative majority on the court, could lead the court to revisit basic anti-discrimination protections, marriage equality, reproductive rights and other issues.“This was a hyper-political, partisan speech, and his message in sum was: I’m free to say this now. We have the votes,” tweeted Chris Geidner, director of strategy at the justice collaborative advocacy group.As the United States continues to shatter daily records for new Covid-19 cases, Alito blasted coronavirus mitigation measures for imposing “previously unimaginable restrictions on individual liberty”.He singled out restrictions in Nevada limiting religious services to 50 attendees. “The states’s message is this: forget about worship and head for the slot machines, or maybe a Cirque du Soleil show,” Alito said.Although by any measure conservative jurisprudence under Trump has flourished, securing minority legal views for a generation, Alito spun a conservative victimization narrative, in which citizens are threatened in their freedom to speak and act as they please.“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,” he said.“It pains me to say this,” Alito said, “but in certain quarters, religious liberty is fast becoming a disfavored right.” As an example, Alito decried a Washington state law requiring a pharmacist to fill prescriptions for “morning-after pills, which destroy an embryo after fertilization”, as he put it.“Even before the pandemic, there was growing hostility to the expression of unfashionable views,” Alito continued, using the rubric of “the rule of law and the current crisis” to mount an attack on same-sex marriage, secured by the court in Obergefell v Hodges (2015), a ruling from which he dissented.“You can’t say that marriage is a union between one man and one woman,” Alito complained. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”Alito went on:
      That this would happen after our decision in Obergefell should not have come as a surprise. Yes, the opinion of the court included words meant to calm the furors of those who cling to traditional views on marriage. But I could see, and so did the other justices in dissent, where the decision would lead. I wrote the following: ‘I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public they will risk being labeled as bigots and treated as such by governments, employers and schools.’ That is just what is coming to past.
      One of the great challenges for the supreme court going forward will be to protect freedom of speech. Although that freedom is falling out of favor in some circles we need to do whatever we can to prevent it from becoming a second-tier constitutional right.”
      Legal analysts said the speech displayed thinking familiar from the 70-year-old justice’s opinions – but they called his decision to give voice to those opinions unusual.“I’m not surprised that Justice Alito believes any of those things,” tweeted University of Texas law professor Steve Vladeck. “One need only read his written opinions to see most of them. I’m surprised that he decided to *say* them in a public speech that was live-streamed over the internet – clips of which will now be recirculated for ever.”Alito unleashed will make him a hero to more people looking for a leader of the conservative Court — but it also will make people outside of the SCOTUS world realize how he comes off (and it’s not good). pic.twitter.com/Gqt7uyHW07— Chris Geidner (@chrisgeidner) November 13, 2020
      Alito is a George W Bush appointee who previously worked as a federal prosecutor in New Jersey and a circuit court judge. The speech was pre-recorded for the 2020 National Lawyers Federation sponsored by the Federalist Society. “Today I’m talking to a camera, and that feels really strange,” Alito said.To capture the mood of what he described as an assault on religious liberties and free speech, Alito quoted a 1997 Bob Dylan song.“To quote a popular Nobel laureate,” Alito said, “it’s not dark yet, but it’s getting there.” More