REMARKS TO THE 2020 FEDERALIST SOCIETY NATIONAL LAWYERS CONVENTION.

• Author: Alito, Samuel A., Jr.

INTRODUCTION

Good evening, everyone. I am very pleased to have this opportunity to speak to all of you who are attending the Federalist Society's Annual Lawyers Convention via the internet. I have given the Convention's keynote speech several times before, but on all those occasions, I spoke to a live audience at the big Convention dinner. By the time I got up to speak, there had been a cocktail hour. Everybody had had the chance to enjoy a glass of wine--or two--with dinner. And people were in a good mood. Those are optimal circumstances for a speaker. They tend to make the audience more receptive to any weak attempts at humor and generally more forgiving in its assessment of the speech.

Tonight, I am speaking to a camera, and that feels strange. And I wondered if anything could to be done to alleviate that. If any of you watched any regular season baseball games this year, you will have seen that there were no real fans in attendance. But in an effort to make the atmosphere seem a bit more normal, teams placed cardboard cutouts of fans in the seats and piped in recorded cheers. I thought about asking the organizers of the Convention to do something similar, but that would only make the setting more surreal. However, if any of you watching this would like to enjoy a beverage in the comfort of your homes, I hope you will feel free to do so. And I guess the upside of this set up is that if you feel the urge to throw rotten tomatoes, you will only damage your own screen.

THE FEDERALIST SOCIETY

If you have watched some of the events of this year's Convention, I hope you have found them informative and thought provoking. As in the past, they have featured speakers with a variety of views on important topics. Some of those watching tonight may be new to Federalist Society events and may have heard a lot of misinformation about the Society. So let me say a word at the outset about what the Society is, what it is not, and why I have been a member for many years.

Let me start with what it is not. It is not an advocacy group. Unlike other bar groups, it does not take a position on any issue. It does not propose legislation or lobby or testify before Congress or file briefs in the Supreme Court or any other court. It holds events, like this Convention, at which issues are debated and discussed, openly and civilly.

Anybody can join the Society, and anybody can attend events like this Convention. Most members of the Society are conservative in the sense that they want to conserve our Constitution and the rule of law. But members disagree about many important things.

The Society started in law schools in the 1980s and now has 200 law school chapters. (1) And the best law school deans have expressed appreciation of the Society's contribution to free and open debate. My colleague Elena Kagan is a prime example. When she was the dean of Harvard Law School, she spoke at a Federalist Society event and reportedly began with these words: "I love the Federalist Society!" (2) And after some applause, she repeated: "I love the Federalist Society! [pause] But you are not my people." (3) That is a true expression of the freedom of speech that our Constitution guarantees and that we need to preserve. We should welcome rational, civil speech on important subjects even if we do not agree with what the speaker has to say.

Unfortunately, tolerance for opposing views is now in very short supply in law schools and in the broader academic community. 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. And many law school administrators and faculty members do little to prevent this. Under these circumstances, Federalist Society law school events are more important than ever.

I will have more to say about freedom of speech later, but at this point I want to express appreciation to the many judges and lawyers who stood up to an attempt to hobble the debate that the Federalist Society fosters. A move was afoot to bar federal judges from membership in the Society. (4) And if that had succeeded, the next logical step would have been to forbid them from speaking at law school events and other events sponsored by the Society. Four court of appeals judges--Amul Thapar, Andy Oldham, Bill Pryor, and Greg Katsas--prepared a letter that devastated the arguments of those who wanted to ban membership. (5) The letter was signed by more than 200 federal judges (6)--including judges appointed by every President going back to President Ford--and at least for now, the proposal is on hold. We should all express our thanks to these defenders of free speech.

TONIGHT'S TOPIC

The topic of this year's Convention is "The Rule of Law and the Current Crisis." And I take it that the title is intended primarily to refer to the COVID-19 crisis that has transformed life for the past eight months. The pandemic has obviously taken a heavy human toll--thousands dead, many more hospitalized, millions unemployed, the dreams of many small business owners dashed. But what has it meant for the rule of law?

I am now going to say something that I hope will not be twisted or misunderstood--but having spent more than twenty years in Washington, I am not overly optimistic. In any event, here goes: The pandemic has resulted in previously unimaginable restrictions on individual liberty. Now notice what I am not saying or even implying. I am not diminishing the severity of the virus's threat to public health. And putting aside what I will say in a few minutes about a few Supreme Court cases, I am not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I am a judge, not a policymaker.

All that I am saying is this, and I think it is an indisputable statement of fact: We have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020. Think of events that would otherwise be protected by the right to freedom of speech--live speeches, conferences, lectures, and meetings. Think of worship services: churches closed on Easter Sunday, synagogues shuttered for Passover and Yom Kippur. Think about access to the courts. Or the constitutional right to a speedy trial. Trials in federal courts have virtually disappeared in many places. Who could have imagined that?

The COVID crisis has served as a sort of constitutional stress test. And in doing so, it has highlighted disturbing trends that were already present before the virus struck, trends that we must resist and reverse when the crisis is over.

THE ADMINISTRATIVE STATE

One of these trends is the dominance of lawmaking by executive fiat rather than legislation. The vision of early 20th century Progressives and the New Dealers of the 1930s was that policymaking would shift from narrow-minded elected legislators to an elite group of experts--in a word, that policymaking would become more "scientific." That dream has been realized to a large extent. Every year, administrative agencies, acting under broad delegations of authority, churn out huge volumes of regulations that dwarf the statutes enacted by the people's elected representatives.

And what have we seen in the pandemic? Sweeping restrictions imposed, for the most part, under statutes that confer enormous executive discretion. We had a COVID-related case from Nevada, so I will take the Nevada law as an example. Under that law, if the governor finds that there is "a natural, technological or man-made emergency or disaster of major proportions," the governor can "perform and exercise such ... functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population." (7) To say that this provision confers broad discretion would be an understatement.

Now, again, let me be clear. I am not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate. And I am not passing judgment on this particular statute. I want to make two different points. First, what we see in this statute and in what was done under it is a particularly developed example of where the law in general has been going for some time--in the direction of government by executive officials who are thought to implement policies based on expertise and, in the purest form, scientific expertise. Second, laws giving an official so much discretion can be abused. And whatever one may think about the COVID restrictions, we surely do not want them to become a recurring...