I was raised Catholic. When I was nine years old, waiting in enormous St. Benedict’s slow line for Communion, I studied the violent imagery adorning every window, crevice and corner of the church.
Romans were fond of crucifying people, and Jesus was no exception. The walls of the church depicted violence everywhere: the stations of the cross, nailed body parts, Pontius Pilate’s whips, stab wounds, bloody crowns of thorns. To top it off, a twenty foot tall crucifixion with the same lifelike details loomed over the alter. It hit me that these images weren’t meant to comfort. They were meant to manipulate through fear, guilt and control.
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My dad had already taught our family the causal link between mortal fear and control, my mom had left him for that reason, and I didn’t need a repeat of the same lesson. It also didn’t sit right with me that we were surviving on peanut butter sandwiches, yet the tax-free church still wanted 10 percent of my mom’s barely-there wages, and what was up with priests having all the power while nuns did all the work?
I decided in that communion line that organized religion was mostly about power, control and money, and not in that order. Although Jesus’ woke messages of peace and love were transcendent and ethereally beautiful — Consider the lilies. Do unto others. Do not judge. Turn the other cheek … — men ruling the Catholic church ditched the beauty and embraced the power hundreds of years ago.
Using the High Court to promote religion
As a lapsed Catholic and long-in-the-tooth federal trial lawyer, I am more familiar with Supreme Court Justice Samuel Alito’s religious nuttery than I want to be. I certainly didn’t need any more proof that his jurisprudence — as well as his misogyny — has deep Catholic roots, but last week, filmmaker Lauren Windsor brought the receipts anyway.
A couple weeks ago, at the annual dinner for the Supreme Court Historical Society, Windsor secretly taped Alito agreeing with a stated goal of fighting to return “our country to a place of godliness.” I’m not a fan of secret wiretaps, but every public figure with a lifetime federal appointment should assume that what they say to strangers in public places could become public.
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When Windsor asked Alito about the nation’s current polarization, Alito replied that “one side or the other is going to win … you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference.” So much for being a neutral arbiter, or an umpire calling balls and strikes where they fall.
Alito’s religious bias shows
Rolling Stone first reported the exchange, and observed that Alito, a George W. Bush appointee who’s served on the Supreme Court since 2006, makes little effort to hide that he is a partisan member of a hard-right judicial faction.
Alito’s statement that “fundamental things really can’t be compromised” suggests he sees cases as zero-sum affairs. Instead of serving as an arbiter trying to craft a just result based on established precedent, Alito picks sides, then drives his selective analysis toward his desired result.
Vox conducted an assessment of Alito’s “standing” decisions — cases that examine whether federal courts have jurisdiction to decide a particular dispute — and found that Alito has ruled in favor of conservative litigants 100 percent of the time. Standing means plaintiffs must have a personal stake in the dispute; they can’t just be interested bystanders. Finding standing among 100 percent of conservative plaintiffs — and zero percent among liberal plaintiffs — exposes irrefutable bias.
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Alito seems particularly inclined to find standing when religious beliefs are offended, as crystallized in 303 Creative LLC, a case involving a homophobic web designer.
In 303 Creative, Alito and the conservative majority allowed business owners to refuse to do businesses with gay couples on the grounds that gay marriage offends their religious beliefs. The plaintiff, a web designer, didn’t have standing to sue — no gay clients sought her services, she claimed she was afraid that Colorado’s non-discrimination law meant she might have to design a wedding website for gay couples.
Alito and the conservative majority found standing anyway, and they issued what amounts to an advisory opinion, simply to set anti-LGBT policy for the nation.
So much for Federalists not legislating from the bench.
Alito’s Catholicism-driven misogyny comes through in Casey, Hobby Lobby and Dobbs
When Alito served on the 3rd Circuit Court of Appeals, his dissent in Planned Parenthood vs. Casey would have required women to notify their husbands prior to getting an abortion. Equating a husband’s control with parental control, Alito showed complete indifference to women brutalized by domestic violence who would have risked their lives by notifying their abuser of their plans to abort.
Then, in 2014, in Hobby Lobby, in a 5-4 split, Alito wrote that an employer had the right to exclude contraceptive coverage from employee insurance plans based on the employer’s religious beliefs.
Contraceptives are routinely included in most health care plans under the Affordable Care Act. To circumvent the ACA, Alito focused on the Religious Freedom Restoration Act, which allows religious objectors to be exempt from federal law unless compliance is “necessary to a compelling government interest.”
In Alito’s final analysis, allowing women to avoid unwanted pregnancies so they can earn a living was less “compelling” than employers’ religious beliefs that God meant women as birthing vessels first, employees second.
In his infamous Dobbs opinion, Alito revived a 13th century treatise on English law and custom, written when women were burned alive as witches.
Alito’s sleight of hand used selective misrepresentations of ancient common law history to overturn 50 years of constitutional protection for reproductive choice. He determined that legal abortion did not exist at common law, despite his own passages detailing how “abortion was a crime after ‘quickening’ (around 25 weeks) throughout common law. Pages 16 through 28 of Alito’s own opinion describe how abortion was legal up to 25 weeks, for centuries, so when Alito said there was no abortion throughout centuries of common law, he was lying to reach his preferred outcome.
Alito’s hubris and refusal to recuse should lead to his impeachment
During oral argument on former President Donald Trump’s election interference case, Alito offered a crazy argument that presidents need broad immunity from criminal consequences, because an incumbent president who “loses a very close, hotly contested election” would not “leave office peacefully” if they could be prosecuted by the incoming administration.
Alito addressed a hypothetical future president’s fear, instead of addressing what actually happened when Trump tried to overturn the 2020 election.
That Alito allowed an insurrectionist flag to be flown at his home, and allowed a Christian Nationalist flag to be flown at his vacation home, should have triggered his recusal from all cases dealing with Trump’s insurrection.
But it didn’t.
Federal law on federal judges’ recusal requires any justice to recuse “in any proceeding in which his impartiality might reasonably be questioned,” i.e., you can’t fly your freak flag and pretend not to be a freak.
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Alito’s strident ideological bias, entitled hubris and decades of misogynist rulings have brought the nation’s opinion of the High Court to an unprecedented low. In his quest to rewrite history to fuze church and state, Alito disregards centuries of violence and wars carried out in the name of religion. He has bastardized the Establishment Clause of the 1st Amendment — a venerated shield protecting religious freedom — into a sword for inflicting his religious worldview onto others.
The weapon of federal law should be turned on him. Democrats and moderates need to make Court reform a top campaign issue, use Alito’s (and Clarence Thomas’) outrageously unethical conduct to win a sufficient majority in both chambers, and impeach them as the first order of business.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake, is free.