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Justice Samuel Alito's remarks at the Claremont Institute, 2/11/2017

February 13, 2017
Updated on February 22, 2017


On February 11th, 2017, Justice Samuel Alito received the Statesmanship Award and delivered the keynote speech at the Claremont Institute's 2017 annual dinner in honor of Sir Winston S. Churchill. Diane Lenning has posted video clips of the speech to her YouTube page.

Since video footage of Justice Alito's speeches is hard to come by, we have transcribed each video clip below. Note that the last two videos are numbered 5 and then 4: we switched the order intentionally, as the videos are not labeled in chronological order.

Justice Alito at the Claremont Institute, 2/11/17 – Transcript of Video 1

… It is just about impossible to imagine anything like that happening today, but that’s what happened in Philadelphia in 1787. So, after the convention had finished its work, but before the text of the new proposed Constitution was made public, Franklin was accosted by a woman named Elizabeth Powell. And she said, “Well, doctor, what have we got? A republic or a monarchy?”

And Franklin replied, “A republic, if you can keep it.”

A republic, if you can keep it. Franklin’s words betrayed a real fear on the part of the Founders—something that haunted their work. Because they knew, all too well, that republics of the past, the republics of the ancient city-states—of ancient Greece, and Renaissance Italy – had been notoriously fragile. The Founders did their best to shore up weaknesses that had toppled those earlier republics, but I think it is fair to say that they emerged from the Convention with their fingers crossed, and I also think it’s fair to say that if they came back today, I’m sure they would be astonished that we are still living under the same Constitution that they put together 240 years ago.

But they built very well, and their Constitution is still esteemed by ordinary Americans. Franklin’s words, nevertheless, remain important. They remind us that the republican form of government created by our Constitution requires vigilance. It requires work. Now, if any of you visited Washington, DC, in recent years, you probably noticed scaffolding on some of the most famous and symbolic structures in the nation’s capital. The Washington monument was badly damaged by the earthquake in 2011—we’re not supposed to have those things on the East Coast, you’re supposed to keep them here—but we did have one, and the monument was damaged. It was covered in 500 tons of scaffolding for the next three years.

Sometime later, the iron dome of the Capitol was inspected, and it was discovered that there were 1,300 cracks in the iron dome. And the architect of the Capitol raced to complete the repairs on the dome before the inauguration last month. The slate roof on the Lincoln Memorial is crumbling, and the memorial is going to undergo a 100-million dollar overhaul. Green slime is creeping up the sides of the Jefferson Memorial—Washington was really built on a swamp. And the Supreme Court building, where I work, has been under construction projects almost continuously for the 11 years that I’ve been on the Court.

Indeed, just a few weeks after I was nominated, I was on a train from New Jersey to Washington, and the woman who was seated in the seat in front of me was reading an article about something that had happened at the Supreme Court. A basketball-sized chunk of marble had fallen from the side of the Court and crashed on the steps. Fortunately, nobody was there at the time. So, she was discussing this article with her friend, and she said, “You know what, I think this is a sign from God that he is really upset about that horrible Alito nomination.”

True story. Well, I didn’t interpret it that way.

In any event, that incident triggered an inspection of the façade and they discovered a lot of cracks and worked laboriously to repair over a period of time.

What is the relevance of all this? Well, the relevance is this, I think. What is true of these structures is true of our Constitution. If we want to keep the republic, we need to be alert for cracks. We need to be prepared to take corrective action when it is needed. And if we look at our constitutional structure in that way and assess its current situation, what do we find? I think there are some repairs to be done.

Let me begin with something very basic and fundamental. Mr. Klingenstein has already covered a lot of this ground, but it’s important, so I think it bears repeating. What I want to talk about is the way in which laws are supposed to be made under our Constitution.

Back in the days when schools still taught something called civics, every student could recite the way in which the law is made under the Constitution of the United States. The bill has to be passed in the same form by both houses of Congress, it has to be presented to the president, the president has to sign it, or the bill has to be passed again by two-thirds majority in both houses.

In reality, however, the vast majority of federal law is not made in this way. It is made in a way that is never mentioned in the Constitution. It is promulgated by unelected executive branch officials in the form of federal regulations. If we stacked up all of the statutes enacted by Congress during the past decade, and next to that stacked up all of the regulations that were issued in that same time period by federal departments and agencies, the regulations would tower over the laws. Last year, it is said that the executive issued 97,000 pages of regulations. It is mind-boggling in total.

Now, how did this happen? And again, I’m going to go over ground that was covered before. To make a long story short, toward the end of the 19th century and the beginning of the 20th century, the progressives of the day came to believe that our 18th century Constitution—our horse-and-buggy Constitution, as they sometimes called it—was outmoded. Woodrow Wilson—our only PhD President, by the way—is a picture of this thinking.

Most presidents publicly proclaim admiration for the Constitution, but Wilson wrote about the Constitution while he was still in academia and before he ran for public office, so he did not hide what he really thought, and he did not think very much of our Constitution. He scoffed at the very idea of inalienable rights. Talk about such rights, he said, was a great deal of nonsense and a lot of pleasing speculation. He also deplored the separation of powers.

Now, just as an aside, I think it is interesting that of all the presidents, the one who best understood our constitution, who got to the real core of its meaning, was the one with the least formal education—and that, of course, was Abraham Lincoln. And Wilson, the president with the most formal education, was the most openly hostile.

Progressives like Wilson thought our Constitution was out of date. It would not do in modern age. In the age of Darwin and Hegel, it was Madisonian and Newtonian. The lawmaking process set out in the Constitution was too slow and too cumbersome. The elected representatives of the people were often unenlightened, and sometimes corrupt. Modern society and modern economy needed a more efficient and scientific system. Important policy choices should be turned over to an elite group of unelected experts.

As another aside, I will note that in Europe, this approach has now reached a near apotheosis. A number of nations in the European Union still have their popularly-elected legislatures and their parliaments, but the law made by those bodies—bodies that are actually elected by the people—is subordinate to the EU law. And EU law, in turn, is made for the most part by the European Commission, which is a group of unelected bureaucrats in Brussels.

Justice Alito at the Claremont Institute, 2/11/17 – Video 2

… The European parliament. But it is a very unusual kind of parliament. It is a parliament that is unable to propose legislation. We have not yet gone quite that far in the United States, but the trend is in the same direction. Over the years, Congress has shed more and more lawmaking authority, the executive has been only too happy to fill the gap, and the Supreme Court has either acquiesced in this shift in lawmaking power or has actually facilitated it.

Here’s the basic drill: Congress enacts a broadly worded mandate that very few people can disagree with. Then it hands off the problem to a department or agency to make hard policy choices that are guaranteed to make one group or another, and maybe both sides, angry. There was a time when the Supreme Court put at least some limits on the degree of legislative power that Congress could delegate, but that ended a long time ago. Now, once a department or agency promulgates a regulation that purportedly interprets a statute enacted by Congress, the Supreme Court defers to that interpretation, unless it’s unreasonable. And that result has been a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.

The shift has had two other important effects. It’s not just a question of who makes the law. There are effects that go to the kind of law that is made. Because it is so much easier to issue a regulation than it is to pass a statute, the shift has produced an enormous increase in regulations that we have experienced with all of the attendant effects on our economy.

And second, because the regulations are purported to be based on science, rather than the messy legislative process, the messy compromises that go to the creation of legislation in an elected body—whom by regulation has a tendency to lead to administrative perils.

Here are two examples. The Clean Water Act regulates the discharge of pollutants into, quote, the waters of the United States. So, what are “the waters of the United States?” Congress did not provide a clue. This was not a legal term of art that anybody understood. They created this new term, “the waters of the United States,” and didn’t bother to tell us what it means. Well, we can assume it means rivers and lakes. But what about a stream that is dry for most of the year? What about an irrigation ditch? What about a soggy backyard?

The framers of the Constitution thought that tyranny would result if the same unit of government had the power to make the law, and to enforce the law, and to decide disputes about the application of the law. And we saw an example of this in a case involving the meaning of the “waters of the United States.” It involved a couple called the Sacketts. They had long wanted to build their dream home near Priest Lake in Idaho. They bought a lot near the lake, but not directly adjacent to the lake, and their contractor began work. But one day, they got a letter from the Environmental Protection Agency, and the letter said that the Sacketts were violating the Clean Water Act by disturbing wetlands. They said that their backyard was part of the waters of the United States. They were ordered to cease construction of their home and to restore the land to its prior condition, something that would have cost probably more than the price that they paid to buy the lot in the first place. They were also informed that they were liable for a fine of $75,000 a day, if they did not do exactly what the EPA commanded.

But it gets worse than that. The Sacketts did not agree that their backyard was part of the waters of the United States. They wanted some neutral body to decide that legal question. But according to the federal government, they had no way of obtaining such a ruling. They could not go to court, according to the federal government, and get a decision on the question. They had to wait until the EPA chose to take them to court and the EPA could wait as long as it wanted while the fines—the $75,000 per day—accumulated. They had two options: they could knuckle under, or they could do what the EPA wanted.

So they went to the district court, and then they went to the Ninth Circuit, and those tribunals were not responsive to the Sacketts’ claim of a property right. They had to take their case all the way to the Supreme Court.

Here’s another example: regulation of the emission of carbon dioxide and other greenhouse gases. Now, Americans are, obviously, of two minds about the regulation of greenhouse gases and the question of climate change. But one thing that I think is beyond dispute is that whatever our country does about this matter is important. It will have a profound effect on the environment, or the economy, or on both. In a healthy republic, this issue would be publicly debated, and the basic policy choices would be made by the elected representatives of the people. That is the system prescribed by our Constitution. But that is not what has happened. The Clean Air Act was enacted by Congress way back in 1970, and it regulates the emission of “pollutants” – that’s the term in the statute. Now, what is a pollutant? A pollutant is a subject that is harmful to human beings or to animals or to plants. Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.

When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter—basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases. Yet in an important case decided by the Supreme Court in 2007, called Massachusetts v. EPA, a bare majority of the Court held that the Clean Air Act authorizes EPA to regulate greenhouse gases. Armed with that statutory authority, the EPA has issued detailed regulations for power plants, for factories, for motor vehicles. The economic effects of these regulations are said to be enormous. I am not a scientist or an economist, and it is not my place to say whether these regulations represent good or bad public policy. But I will say that a policy of this importance should have been decided by elected representatives of the people in accordance with the Constitution and not by unelected members of the judiciary and bureaucrats. But that is the system we have today, and it is a big crack in our constitutional structure.

One more related Supreme Court case that is along the same lines. This one shows just how far an executive department or agency may be tempted to go under the scheme that is enforced in place today. A provision of the Clean Air Act says that a stationary source must obtain a license if it emits more than a specified quantity of pollutants. There are actual numbers in the statute. Well, if you apply those numbers to sulfur dioxide or particulate matter, they make sense. But if you apply them to greenhouse gases, the result is absurd, and the EPA expressly acknowledged that that’s an absurd result.

OK, then what is the EPA to do? Well, no problem. They took out their pen and crossed out the numbers that Congress enacted, and they wrote in their own numbers. Amazingly, four of my colleagues said this is a reasonable interpretation of the statute. And therefore, it is OK.

Now, if the administrative agency can do that, I don’t know what an administrative agency cannot do. Lawmaking power has been transferred from Congress to the executive.

Here is the second crack: the development of deep and bitter divisions in our society—what our Framers called factions. The Framers knew that the fragile republics of the past had often been torn apart by factional strife. Montesquieu thought that for this reason a republic could endure only if it was small and homogenous, not prone to the development of these factions. But even in 1787, the United States was neither small nor homogenous. And today, of course, the country is much bigger and immensely more diverse.

Justice Alito at the Claremont Institute, 2/11/17 – Video 3

… More divided than at any time since the Civil War, and I know that Dennis Prager recently wrote an article called “A Second Civil War,” along those lines. Now, I hope that we are not divided to that extent—but the signs of fracture are hard to ignore.

What holds us together as a country? I traveled to China in September so a comparison between our country and China comes to mind. China has been a unified country for more than two thousand years. A great majority of the population regards itself as belonging to the same ethnic group, the Han. China is held together by blood, by long history, and by a shared ancient culture.

The United States, by contrast, is an upstart. The population of the United States is drawn from every corner of the globe. Every race and religion and just about every ethnic group is represented. What has held us together are shared ideals embodied in our founding documents: liberty, inalienable rights, and equality under the law.

Now, the political and cultural forces that are pulling Americans apart are too strong for the Supreme Court or for any other court to stop, but we can do our part. And unfortunately, in an important case that we decided at the end of the last term of the Court, we failed in that responsibility.

The case was Fisher v. University of Texas, and it concerned the old question of affirmative action in college admissions.

At one time, the University of Texas had an admissions plan that gave preferences to applicants of particular minority groups over other applicants. But classifying Americans by race is a very sensitive matter, and the legislature of Texas thought it had a better idea. It thought it could achieve diversity in the student body at the University of Texas—something that is widely desired and is thought to be very beneficial to the development of our students—they thought they could do this without taking race into account. And what they did was to enact a law called the Top 10% Plan.

Under this law, any high school student in Texas who finishes in the top 10% of his or her high school class is automatically admitted to the University of Texas. So this plan did not take race or ethnicity into account, but it resulted in the admission of just about the same number of African American and Latino students who had been admitted under the prior race-based plan. And it also had the advantage of helping students who were stuck in inferior high schools. Whatever school that you’re in, if it’s a high school in a poor area of Dallas or Houston, or if it’s a high school along the border—if you work hard and you finish in the top 10% of your high school class, you can go to the University of Texas.

Well, the administration of the university was unsatisfied with this plan. They were fixated on taking race and ethnicity into account. So, what did they do? They created some categories—white, African American, Hispanic, Asian—and they told applicants to put themselves into one of those categories. Now, never mind that an increasing number of applicants have parents who belong to different ethnic groups, never mind that the university made no effort to check the accuracy of the students’ categorization.

Why was this needed? The university was hard pressed to explain. Its explanations were a moving target. But here is what is perhaps the leading explanation. In a university’s expert judgment, the top 10% plan, although it admitted a lot of African American and Hispanic students—it didn’t admit the right kind of African American and Hispanic students.

The case was argued twice. The first time it was argued, the university’s lawyer said the top 10% plan did not allow the school to give preference to the child of successful black or Hispanic lawyers or doctors who lived in an affluent Dallas suburb. I’m not making this up. I thought it was an incredible argument. Affirmative action programs, as I’m sure you know, were developed in the late 1960s, in the 1970s when the Jim Crow era was not very far behind us, and the idea was to give a leg up to students who were disadvantaged. But now, the university was arguing that it needed this plan to give a preference to students who were privileged.

As I said, the case was argued two times. That was the first time. On the second time, the university doubled down. It went even further with this argument. We were told that the top 10% plan was defective because it did not allow the school to give a preference to a black student from Andover.

Now I have nothing against Andover. Any Andover grads here tonight? I’m indebted to Andover. The two presidents of the United States who appointed me to judicial positions are both graduates of Andover. The official name of school is the Philips Academy in Andover, Massachusetts. It was founded in 1778. It is one of the oldest, richest, and most prestigious boarding schools in the United States. In addition to claiming two US presidents as alumni, other alumni include Oliver Wendell Holmes Sr., Samuel Morse, Frederick Law Olmstead, Benjamin Spock, Jack Lemmon, and for you football fans, Bill Belichick.

Its website features the following quotation from a student: Some colleges don’t even have facilities like this. So, what was the University of Texas administration saying? What they were saying was: suppose the two candidates for the last available spot in the entering class were, on one hand, the black or Hispanic student who had the benefit of an Andover education, and an equally well-qualified applicant who is an Asian student from a poor family, with parents who didn’t speak any English. Weighing these two, we want to be able to give the preference to the Andover graduate.

This is an obsession with putting people into racial categories. We live in a time when racial and ethnic divisions are stressed. On college campuses, and in some other quarters, they have become a near-obsession. And at such a time, I think the Supreme Court has a special obligation to hold fast to the ideal of equal justice under law.

That ideal, of course, does not mean forced uniformity. Our Constitution does not give free rein to the majority. Our Framers knew very well that the majority may oppress. And therefore, our Constitution places fundamental rights beyond the majority’s reach, and the Supreme Court has the responsibility to protect those rights.

A case that came before us at the end of the last Court term concerned one of the issues in the so-called culture wars that divide our country. Now, there are those who have no tolerance for the opposite side in these battles. Here are the words of a professor from Harvard Law School, in May of last year, proclaiming, maybe prematurely, that the left had won the culture wars—the professor had the following advice. “My own judgment is that taking a hard line—you lost, live with it—is better than trying to accommodate the losers. Trying to be nice to the losers didn’t work well after the Civil War, and taking a hard line seemed to work decently well in Germany and Japan after 1945.”

So, in other words, we have Nazis and former slaveowners, we have people who cling to traditional moral beliefs, same difference. They are losers in the war and they just have to accept it.

And, anticipating that Justice Kennedy would no longer be the deciding vote in controversial cases in the Supreme Court, this professor had this delightful advice: eff Anthony Kennedy.

At the end of the last term of the Court, we were presented with a case that looked like the implementation of this healing attitude. Washington state enacted a law that requires every pharmacy to sell every drug that is approved by the Food and Drug Administration. Now…

Justice Alito at the Claremont Institute, 2/11/17 – Video 5

… And thousands of drugs, including drugs for all sorts of obscure ailments. We had amicus briefs filed by national and local pharmacists’ associations, that told us…

Justice Alito at the Claremont Institute, 2/11/17 – Video 4

… This pharmacy does not have one stock. They find a pharmacy that carries the drug, and they refer the customer to that pharmacy. In Washington state, some pharmacists objected to dispensing emergency contraceptives, so-called morning after pills, because they thought that they are abortifacients. Therefore, if a customer came to one of these—if a customer sought one of these drugs, the pharmacists would refer them to stores that distribute them, as do all of the major pharmacy chains.

The record before the Court strongly suggested that this practice had not caused any significant problems. Nevertheless, there was evidence that the governor of Wisconsin [sic] sought to suppress the practices of these pharmacists who objected on religious grounds and moral grounds to dispensing emergency contraceptives. So she pressured state officials to support the new law requiring every pharmacy to carry every drug you can buy from the FDA. She threatened to remove the members of the state human rights commission if they didn’t go along.

Well, this was done even though it would have the effect of making it impossible for a pharmacist with these religious or moral objections to work in the state of Washington. They would have two choices—they could either give up their unenlightened notions, or they could leave the state and seek to be licensed someplace else. They could move to Idaho, I suppose.

The new law took effect. It was challenged by the owners of a pharmacy – one of the Ralph’s stores in Olympia, Washington. A customer came into that store and asked for one of these drugs. The pharmacy referred the customer to one of more than 30 pharmacies within a five-mile radius that had those drugs in stock. They won in the district court—they challenged the law as a violation of their right to free exercise of religion and they won in the district court—but the Ninth Circuit was not sympathetic to their claim of religious liberty, and unfortunately, when the case came to our court at the end of last term, the Court did not think that case even deserved review.

This brings me to the final crack. Our constitutional system cannot survive unless citizens are allowed to speak freely on issues of public importance. Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans.

But today, unfortunately, freedom of speech on important subjects is, I believe, in greater danger than at any prior time during my life. Powerful forces want to silence the opposition. Consider this: in the last Congress, 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.

This is a startling development. The very idea of amending the First Amendment is quite something. And if this amendment were adopted, freedom of speech as we have known it would be transformed. In the East where I live, we sometimes keep a watch on the weather conditions here in the West, because we know that the jetstream blows from west to east. So if you’re being hit with a big storm here today, that storm may hit us a couple of days later.

I think there is something similar with respect to culture. There is a sort of perpetual jetstream that blows from Europe across the Atlantic to our shores, and a number of my colleagues have been quite outspoken in advocating that we take European law into account when interpreting our Constitution. We can learn from them; that is what they say.

For this reason, it is not comforting to see how European nations that profess to respect freedom of speech deal with the speech of the unenlightened side on cultural issues. I’ll give you two examples. In France, a group recently wanted to air a video on Down Syndrome Awareness Day. It is called, Hello, Future Mom. And in the video, children speaking a number of different languages, children with Down Syndrome speaking a number of different languages, attempt to show that they are able to live happy lives, albeit not without a lot of difficulty and sacrifice on the parts of their parents. The message is entirely positive. I advise you to view it on YouTube. I found it quite moving. You may agree with it, you may not agree with it, but that is not really the point.

The French authorities banned the video on French TV. Why? Because it was, quote, likely to disturb the conscience of women who have lawfully made different personal life choices.

Alright, you may say, this is France, they have a different legal system and a different history. Let’s move across the English Channel to Great Britain. In a leading case in Great Britain, a street evangelist named Harry Hammond made a sign that says, quote, Jesus gives peace, Jesus is alive, Stop immorality, Stop Homosexuality, Jesus is Lord. Now again, you may agree with it, you may disagree with it, that’s really beside the point.

What did Mr. Hammond do? One afternoon, he took his sign to the town square and held it up, and some of the people who saw it took offense. They attacked him. They threw mud on him, they pushed him to the ground, they tried to take his sign away. The police arrived, and they made an arrest. Who did they arrest? They arrested Hammond. He was charged with a crime and he was convicted and fined because his sign was insulting. He gave offense.

More troubling than these developments abroad is the erosion of support for free speech among the young, particularly students, and particularly college students. Students increasingly believe that it is legitimate, and indeed, essential, to ban speech that gives offense, or, to use a popular phrase, speech that makes them feel unsafe.

A recent article just within the time I’ve been here reported these survey results: a majority of high school students share this view. They think it’s right to ban offensive speech. Now where did they get this idea? The survey shows that a near majority of high school teachers also share this view.

What came to my mind when I read this article was a song from—now this is really going to date me—a song from ‘South Pacific.’ “They Have to be Carefully Taught.” I’m sure that is a lot of the reason why the students have this view. This song, interestingly, came out in the late 1940s and was very offensive to some people in the United States. It was very offensive to people who supported segregation in the South and they were not pleased when ‘South Pacific’ was performed in the South. The song made them feel unsafe.

Now, I think we should aim in our public discourse for debate that is rational, that is civil, and that is conducted in the spirit of goodwill. But important ideas are sometimes disturbing. They may offend. Self-government is not for the faint of heart. But what is going on in these schools is really a moral virus that is threatening to the future of our country. As Learned Hand aptly said years ago, liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can do much to help it.

If the American people come to accept the views of our European friends, or the university vanguard, that speech can be banned if it makes them feel uneasy, if it gives offense, it is really hard to see how government of the people, by the people, and for the people can survive.

Well, I don’t want to end on that gloomy note. Our Constitution still stands, it is still held in high regard by ordinary Americans. The buildings and monuments in Washington DC to which I referred at the beginning of my talk are being repaired. The cracks in the Constitution can likewise be fixed. It will not be easy, and it will take time, but it can be done. And if we are ever tempted to become discouraged, we should remember that the greatest statesman for whom tonight’s dinner is named – we should remember his optimism, his indomitable spirit, and his courage. So, to the Claremont Institute, and to all of those who still revere our old Constitution and the principles on which it is based: take heart, keep up the good work, and to all of you—thanks for your support, and thanks for your interest.