Washington — In an unusually harsh and politically colored speech, Judge Samuel A. Arito Jr. told a conservative legal group that liberals are increasing the threat to religious freedom and free speech.
Remarks made at the Federalist Association’s annual meeting Thursday night reflect a statement made by Judge Arito in his judicial opinion, despite the fact that the court is moving to the right. Pain and complaints stand out.Judge John G. Roberts Jr. tried to signal that the Supreme Court was apolitic, while Judge Arito’s comment sent another message.
The remarks surprised part of the left, just as Judge Amy Coney Barrett took over from Judge Ruth Bader Ginsburg and gave the Conservatives a majority of six to three. But legal experts said there were few clear lines governing what judges say from the bench.
Vikram D, Dean of the University of Illinois Law College. Amar said: “There is a difference between what a judge can do and what a judge is advised to do.” I tend to think that John Roberts has a much better instinct for prudence. . “
“Besides the ethical line of anticipating the case and avoiding the emergence of prejudice, it’s a matter of what a good judge should do and the image the judge should nurture,” said Professor Amar. It was.
Still, some legal critics said it was unpleasant to hear political sentiment and even reflections of judicial opinion during a webcast of conservative attorneys.
“Judge Arito’s speech on Thursday was more suited to Trump’s rally than to the legal community,” said Fix the Court, executive director of the nonprofit organization Fix the Court, which calls for stricter ethical rules of the Supreme Court. , Said Gabe Ross.
Others said it was no exception for judges to explain their positions already taken in judicial work.
“It’s one thing for justice to speak publicly about open issues that justice hasn’t yet ruled,” Ed Whelan, president of the Center for Ethics and Public Policy, wrote in the Bench Memos blog at National Review. “Rephrasing the position that justice has already officially adopted is very different and not very noteworthy.”
In an interview during the 2016 campaign, Mr. Welan said Judge Ginsburg had criticized President Trump for refusing to publish his tax return and filed a proceeding on its disclosure. In contrast, Judge Antonin Scalia withdrew from the Pledge of Allegiance case after discussing the case in public.
Mr. Trump has repeatedly acknowledged the federalist association’s achievements by helping to create a list of candidates for the Supreme Court. All three of his appointees (Judge Barrett, Judge Neil M. Gorsuch, and Judge Brett M. Kavanaugh) have appeared on these lists.
Judges’ public appearance in front of a friendly audience was commonplace, and some of the more liberal judges in the court appeared in front of a liberal group, the American Constitutional Society. However, the comments they make on such occasions are generally anodyne.
At last year’s Federalist Association convention, Judge Kavanaugh’s keynote consisted primarily of thanks to those who helped him survive his confirmation hearing.
Judge Arito’s comments were more pointed out, and his view was consistent with his feeling that they were not given the respect they deserved. He felt hurt by some questions at a 2006 confirmatory hearing after his career in the Justice Department and the Federal Court of Appeals in Philadelphia.
He wasn’t happy when President Barack Obama criticized Citizens United’s campaign finance decision in a 2010 State of the Union address, attended by six judges. Obama said the decision “reversed the century of law that I believe would open floodgates for special gains, including foreign companies, to spend unlimited time in our elections.”
Judge Arito said, “It’s not true.” He is not attending another State of the Union address.
On Thursday, Judge Arito focused on the effects of the coronavirus and said it “brought a limit to personal freedom that was previously unimaginable.”
“I haven’t reduced the severity of the viral threat to public health,” he said. “That’s all I’m saying. I think it’s an indisputable statement of fact. I’ve never seen a limit as strict, widespread, and long-term as I experienced in most of 2020. “
Judge Arito was particularly critical of the July Supreme Court’s decision dismissing the Nevada Church’s objection to state restrictions on attendance at religious services.
He said the state treated the place of worship more disadvantageously than the casino. The casino was limited to 50% of the Fire Service Act’s capacity, but the place of worship was subject to a flat rate limit of 50 people.
“Determining whether to allow this heterogeneous treatment shouldn’t have been too difficult,” Judge Arito said. “Take a quick look at the Constitution. You will see the First Amendment Freedom Movement Clause that protects religious freedom. There are no Claps, Blackjack, or Slot Machine clauses.”
The judgment was decided by a 5-4 vote, with Judge Ginsburg dominated. Her replacement by Judge Barrett could upset the court’s balance in similar cases, including a pending case from Brooklyn.
The Nevada ruling was based in part on the 1905 Supreme Court’s ruling on the outbreak of smallpox in Cambridge, Massachusetts, home of Harvard University.
“Now I’m in favor of preventing dangerous things from coming out of Cambridge and infecting the country and the world,” said Judge Arito, who attended Princeton University and Yale University Law School. “It would be nice if something born in Cambridge stays in Cambridge.”
Judge Arito continued to despise and quote Mark Tushnet, a professor at Harvard Law School.
Judge Arito wrote: “The cultural war is over. They lost, we won.”
This is evidence of liberal legitimacy, Judge Arito said.
“For many today, religious freedom is not an important freedom,” he said. “It’s often just an excuse for prejudice and is unacceptable.”
In an interview on Friday, Professor Tashnet said Judge Arito’s criticism of what he said in his blog post four years ago shows that his claim is correct.
“It seems to me that Judge Arito’s remarks are very intense to confirm my judgment as to who won the culture war,” said Professor Tashnet. “He is, in fact, an observation of someone who does not understand the fact that he is the loser of many cultural war issues.”
In his remarks Thursday, Judge Arito said the right to free speech was also threatened.
“Tolerance to dissenting opinions is currently lacking in many law schools and the wider academia,” he said.
He recalled the monologue of comedian George Carlin’s “Seven Dirty Words.” This was the subject of a 1978 Supreme Court decision that allowed the government to limit the use of vulgar language in television broadcasts.
“Today you can watch a show on your TV screen where the conversation appears to consist almost entirely of those words,” Judge Arito said. “Carlin’s list seems to be a quaint relic.”
“But if you’re a college student or professor, or an employee of many large companies, it’s easy to put together a new list called” What You Can’t Say “. And there are only seven items on the list, “he said. “70 times 7 will be closer to the mark.”
He said a typical example was the opposition to same-sex marriage.
“We can’t say that marriage is a union of a man and a woman,” Judge Arito said. “Until very recently, that was what the majority of Americans thought. It is now considered a prejudice.”
Arito says freedom of religion and freedom of speech have been assaulted by liberals
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