WSJ November 14, 2020

By The Editorial Board | 674 words

Pundits and academics have worried a great deal about democratic norms in recent years, but most have gone silent when it comes to progressive assaults on judicial independence. So credit to Supreme Court Justice Samuel Alito for delivering a forceful repudiation of recent efforts to intimidate American courts.

Justice Alito’s Thursday address came at the Federalist Society’s National Lawyers Convention, a wide-ranging event that included spirited debate on presidential power, intellectual property law, social justice and more. The conservative-leaning Federalist Society is above all a forum for open intellectual exchange, but it’s increasingly stigmatized by progressive activists, perhaps out of resentment for its commitment to principle.

Justice Alito spoke against a recent effort to “hobble the debate that the Federalist Society fosters” by barring judges from membership. Attacks on the Federalist Society have gone along with more explicit threats to judicial independence. Earlier this year Sen. Chuck Schumer stood in front of the Supreme Court and declared, “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price.”

This came after five Democratic Senators threatened in a 2019 amicus brief that the Supreme Court could be “restructured” if it didn’t rule their way in a gun case. Justice Alito addressed that directly.

“It was an affront to the Constitution and the rule of law,” he said. “The Supreme Court was created by the Constitution, not by Congress. Under the Constitution, we exercise the judicial power of the United States. Congress has no right to interfere with that work any more than we have the right to legislate.”

Many progressives pointed out gleefully this year—at least when they thought Democrats were about to win the Senate—that nothing in the Constitution prevents Congress from packing the Court to turn it into a legislative House of Lords. But judicial independence remains an important feature of any society that values individual rights. Some are describing Justice Alito’s defense of the judiciary as political. But if the mainstream press had denounced the court-packers—the way it rightly does President Trump’s attacks on individual judges—then Justice Alito wouldn’t have to speak out.

After all, Justice Alito noted, after the threatening amicus brief, the Court “did exactly what . . . the Senators wanted” when it declared the case moot and issued no ruling. He made clear he isn’t saying that the Court acted out of fear of the Senators, but he said he worries that the result of the case could be viewed that way by “Senators and others with thoughts of bullying the Court.”

Justice Alito also highlighted some of the liberties that an independent judiciary protects. He pointed to litigation against a Christian-owned pharmacy in Washington to force it to carry drugs that the owners considered abortifacients. And he highlighted some of the pressure that progressives have put on religious liberty after the Obergefell decision protecting same-sex marriage, including a Colorado baker who had a religious objection to baking a cake for a same-sex couple.

That the left is describing Justice Alito’s attention to the First Amendment’s free exercise clause as political proves his point. Majorities often want to compel conformity to their views. The American judiciary, in its best tradition, balances majoritarian demands with the constitutional rights of weaker and less politically powerful groups, whether they are socialist or conservative.

The left may use Justice Alito’s remarks as an excuse to say that the Court is political, but he wasn’t political in any partisan sense. He was defending judicial independence and core constitutional principles. This won’t make him popular on the legal left that wants to see the Court legislate its preferences, but everyone else should thank him for telling the truth about what’s at stake.

The Democrats may have failed in their 2020 court-packing campaign as voters declined to deliver them majorities that would make this possible. But the campaign itself shows that judicial independence is now a fragile American norm, subject to political whims. Justice Alito was right to defend it.

The Wall Street Journal