Article of the Day: Monday, November 16–What are our Supreme Court Justices thinking?

It has become common for our Supreme Court justices to make speeches that are increasingly political in nature. Here’s an interesting take by Ruth Marcus, opinion writer for the Washington Post, on a speech recently given by Justice Samuel Alito to the Federalist Society. “Of the current nine members of the Supreme Court of the United States, six (Brett KavanaughNeil GorsuchClarence ThomasJohn RobertsSamuel Alito, and Amy Coney Barrett) are current or former members of the organization.” (

Why so sour, Justice Alito? Your side in the Supreme Court is winning.

Ruth Marcus

Supreme Court Justice Samuel A. Alito Jr. testifying before Congress in 2019
Supreme Court Justice Samuel A. Alito Jr. testifying before Congress in 2019 (Susan Walsh/AP)

You might think, given that the Supreme Court’s conservative majority has just been buttressed with a sixth conservative justice, that the mood of the keynote speaker at the Federalist Society’s annual convention would be jubilant. Triumphant, even.

Not Justice Samuel A. Alito Jr., who helps anchor the conservative end of this very conservative court. Alito’s address — one of several he has delivered to the conservative lawyers group, but this time done via streaming video — was, instead, suffused with grievance.

About efforts (unsuccessful) to prevent federal judges from belonging to the Federalist Society. About politically correct pressure on law school campuses that exposes students to “harassment and retaliation if they say anything that departs from the law school orthodoxy.”

About a friend-of-the-court brief by five Democratic senators suggesting that the court might need to be “restructured,” calling it “an affront to the Constitution and the rule of law” — comparing it to a tank pulling up outside a courthouse in an authoritarian regime.

He lamented that the Second Amendment had been treated as “the ultimate second-tier constitutional right.” He asserted that “you can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”

He suggested a gay couple that sought a wedding cake from a baker who opposed same-sex marriage had nothing to complain about: They got a free cake from another baker and “celebrity chefs have jumped to the couple’s defense.”

It was a distillation of conservative victimhood, perhaps unsurprising from a talk-radio host, remarkable from a sitting justice, even if it did not particularly depart from his written work. And even more remarkable because it was delivered at precisely the time when legal conservatives, through ghoulish good luck (the death of Justice Ruth Bader Ginsburg just before the election) and unbridled hardball (preventing Merrick Garland’s confirmation in 2016; ramming through Amy Coney Barrett’s), are in the ascendance.

Last year’s Federalist Society keynote, before a cheering, packed audience, featured Justice Brett M. Kavanaugh. His anodyne theme, in his first public remarks since the confirmation battle, was gratitude. “I will always be on the sunrise side of the mountain,” Kavanaugh pledged. “I will always be not afraid.”

Alito saw no sunrise, and much to fear, in particular about how “the covid crisis has served as a sort of constitutional stress test.”

He warned ominously that “the pandemic has resulted in previously unimaginable restrictions on individual liberty.” Alito wrapped that caution in caveats: that his message should not “be twisted or misunderstood,” that “I am not diminishing the severity of the virus’s threat to public health,” that “[I am not] saying anything about whether any of those restrictions represent good public policy.”

For Alito, the pandemic response illuminates the unfortunate “dominance of lawmaking by executive fiat rather than legislation,” in particular the emergence of a powerful administrative state. “Every year, administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives,” he complained. “And what have we seen in the pandemic? Sweeping restrictions imposed, for the most part, under statutes that confer enormous executive discretion.”

To which I say: Thank goodness. As Alito himself acknowledges, “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 where he is taken aback by what he describes as “the movement toward rule by experts,” I think most of us, watching the flailing pandemic response and the alarming current trajectory, are grateful for such expertise, not fearful of it. We need more Faucis, more empowered, not fewer.

Alito also perceives, as part of the pandemic response, a disturbing disregard for religious liberty. “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right,” he said.

Alito cited pandemic “restrictions that blatantly discriminated against houses of worship.” I wouldn’t defend every rule governors or state health officials have adopted — for instance, Nevada’s seeming indulgence of casinos over churches, which the Supreme Court let stand. The difficult question is whether and how much courts are going to second-guess this kind of line-drawing in the face of an undoubted emergency.

But Alito’s suggestion that “religious liberty is in danger of becoming a second-class right” is inconsistent with reality. In particular, it is inconsistent with the reality on his own court. Notwithstanding Alito’s accusations, the majority has been extraordinarily and increasingly solicitous of claims of infringement on religious freedom — and with Barrett’s addition is poised to become even more so.

In three of three cases last term, the court ruled solidly in favor of religious institutions — carving out a broad exemption from federal anti-discrimination laws for employees of religious institutions, requiring that state aid to private schools must include religious ones and upholding a Trump administration rule that exempted an order of Catholic nuns from having to arrange contraceptive coverage for employees.

Justice Alito, your side is winning. From my vantage point, that’s the constitutional stress test that should worry us all.

Read more from Ruth Marcus’s archivefollow her on Twitter or subscribe to her updates on Facebook

Fareed Zakaria: The Supreme Court might have to choose between power and principle

Marc A. Theissen: Trump is the greatest president in the modern era when it comes to shaping the judiciary

Ruth Marcus: Amy Coney Barrett joins a Supreme Court that’s largely out of step with the national consensus

E.J. Dionne Jr.: Enlarging the Supreme Court is the only answer to the right’s judicial radicalism

David Von Drehle: What Thomas and Alito get wrong in their grumbling about same-sex marriage

Article of the Day: 11/15/2020 Covid Denialism Explained


The Federalist’s Dangerous Coronavirus Trutherism

WTF happened? The publication’s reactionary turn and the hollowing out of conservatism.byROBERT TRACINSKI  MARCH 30, 2020 5:31 AMFeatured Image(Photo collage by The Bulwark / Gage Skidmore / Flickr)Share on FacebookShare on TwitterShare via emailPrint

Coronavirus Truthers are now a thing, and I regret to inform you that a publication I used to work for has taken the lead in spinning crazy Infowars-style conspiracy theories about how the virus is all being hyped up by the Deep State.

Ben Domenech, publisher of The Federalist, recently took to Twitter to explain epidemiology to the epidemiologists, proclaiming that “The 3.3 million unemployment claims today are a direct result of everyone from Morning Joe to Tucker Carlson repeating the baseless predictions of the Imperial College as fact.” He is referring to recent testimony from Neil Ferguson, lead author of an influential academic report on the virus, which had warned of 500,000 deaths in Britain and millions in the United States unless we took strong measures to stop the spread of the virus. More recently, Ferguson testified that he now thinks fewer than 20,000 Britons might die. As Domenech sneers, “2 million people will die vs 20k people will die is a BIG DIFFERENCE NEIL. I mean, how do you even explain that? I accidentally held down the zero button?”

Take that, experts! You have been refuted with Twitter snark.

Except it is Domenech who is getting this completely wrong, and not just wrong, but wrong in a way so crudely simple—and so insistently repeated in his publication—that it cannot possibly be an honest mistake.

The Federalist has always flirted with the ragged edge of trollish contrarianism. I should know, I was there for most of its first five years of publication. But in the past few years, it has transformed from a fresh and vibrant platform representing a diverse spectrum of ideas on the right to a conspiracy-mongering partisan rag that has now become a menace to public health.

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PODCAST · NOVEMBER 13 2020Benjamin Wittes on the High Water Mark of DelusionOn today’s Bulwark Podcast, Benjamin Wittes joins Charlie Sykes to discuss his recent piece about the difficulty of over…

Domenech’s tweet was based on a piece published the same day in The Federalist, in which Madeline Osburn claimed, “The Scientist Whose Doomsday Pandemic Model Predicted Armageddon Just Walked Back the Apocalyptic Predictions.”

This is not remotely what happened. Neil Ferguson’s Imperial College team had predicted in an analysis dated March 16 that the U.K.’s health care system would be overwhelmed and many people would die if the U.K. did not impose a shutdown and adopt strict “social distancing” policies. Then, in testimony delivered last week on March 25, he told a parliamentary committee that he is now projecting far fewer deaths after the U.K. adopted those policies. This is not a “walkback” of his previous predictions but a confirmation of them. It’s all right there in the New Scientist article that Osburn misidentifies as a “retraction”:

[Ferguson] said that expected increases in National Health Service capacity and ongoing restrictions to people’s movements make him “reasonably confident” the health service can cope when the predicted peak of the epidemic arrives in two or three weeks. UK deaths from the disease are now unlikely to exceed 20,000, he said, and could be much lower. [Emphasis added.]

As the man himself explained on Twitter:

Some have interpreted my evidence to a UK parliamentary committee as indicating we have substantially revised our assessments of the potential mortality impact of COVID-19. This is not the case. Indeed, if anything, our latest estimates suggest that the virus is slightly more transmissible than we previously thought. Our lethality estimates remain unchanged. My evidence to Parliament referred to the deaths we assess might occur in the UK in the presence of the very intensive social distancing and other public health interventions now in place. Without those controls, our assessment remains that the UK would see the scale of deaths reported in our study (namely, up to approximately 500 thousand).

You can read the original Imperial College report for yourself and look particularly at Tables 4 and 5, where a long-term “suppression” strategy that includes shutdowns and social distancing—as opposed to the less restrictive “mitigation” strategy previously adopted by the British government—leads to a total number of deaths consistent with Ferguson’s current predictions. (See good fact checks herehere, and here.)

The only difference, as far as I can tell, is that Ferguson’s new projections don’t assume a long-term series of shutdowns but instead are based on a transition to “community testing and contact tracing,” the successful South Korean model, which, as the New Scientist explained, “wasn’t included as a possible strategy in the original modeling because not enough tests were available.” This is consistent with what other experts in infectious disease have been saying: Shutdowns are a necessary short-term measure to buy time for a better response such as mass testing.

I am not myself an expert on infectious diseases, by the way. I merely possess basic reading-comprehension skills and an interest in finding out and understanding what the real experts have to say.

What, by contrast, is that Federalist piece based on? Scrolling through Twitter.

No, really. If you read the article, you find that there is no analysis of Ferguson’s original report, no analysis of his new testimony, no interviews with or quotations from scientific experts. What you will find in place of these things is a set of embedded tweets from a novelist and two political commentators. This is the embodiment of that running joke about people getting their degrees in law, medicine, and now epidemiology from Twitter University.

The Federalist was not the only outlet to badly mangle this story. So did The Daily Wire and the Washington Examiner. (The Daily Wire piece has since changed to a less inflammatory headline and noted the correction. The Washington Examiner piece’s opening paragraphs were stealth-changed, without any indication of an update or correction.) What these articles all have in common is a cheapo, smash-and-grab, clickbait-driven style of journalism that hires young and inexperienced writers to recycle Twitter chatter in a way that reinforces the partisan prejudices of their audience.

But The Federalist has been leaning into Coronavirus Trutherism harder than most, publishing a retired dermatologist’s extravagantly harebrained scheme to have millions of young people deliberately infect themselves to acquire immunity to the disease. Among the many things wrong with this idea—it is still unknown, for example, how long immunity to the coronavirus lasts—this is a proposal for the hospitalization and gruesome death of many thousands of young people. As Ann Coulter inadvertently reminded us, the virus may be less deadly for the young than the old—but even for them, it is many times deadlier than the flu.

As for whether the people running the show are pushing this line because they really believe it or out of pure cynicism, I’ll just point out that Ben Domenech’s wife has rather publicly announced that she is self-quarantining to protect their unborn child. Good for them—but this sure looks like a case of one message for the rubes, and another message for yourself.

Is that a low blow? I’m sorry to cause Ben pain by making this personal, but at this very moment there are people gasping out their last breaths, alone and in pain, connected to a ventilator if they can still get one. If people listen to Ben and The Federalist—and they will—then there will be many more people who meet that horrific end. So maybe he’s not the victim here.

This seems like a good time to answer the question a lot of people have been asking me over the last year and a half: WTF happened to The Federalist?

It may seem hard to remember, but in its first few years, when The Federalistgrew rapidly in readership and influence, it did so by publishing interesting and, yes, provocative articles from writers representing a wide range of views within the right. Ben Domenech built it up by finding writers who were underused and under-appreciated elsewhere for a variety of reasons—mostly because a lot of us lived outside the big media centers of D.C. and New York, or because we didn’t mesh with the ideological lines of existing publications. (I was about the fourth person they hired, and I qualified on both counts.)

But from the very beginning, there was always something of a contest for The Federalist’s soul.

Ben used to talk about wanting his publication to be like The Atlantic, but for the right. That was the vision that sold me. The idea was to provide thoughtful, in-depth articles that represented a vibrant intellectual diversity. On that score, we would be even better than The Atlantic, because we wouldn’t fire Kevin Williamson. That sounded really great—right up to the point, about a year and a half ago, that The Federalist fired me. Another former contributor (who quietly drifted away at about the same time, when the paychecks stopped arriving) agreed that we were let go because we weren’t willing to work for peanuts and we were “not Trumpy enough.”

That was the other model vying for The Federalist’s soul and embodied by its other co-founder, Sean Davis. It’s a model that’s about quantity over quality, about churning out the articles—quick, dirty, and relentlessly partisan—where the only motto is: Always Be Trolling. In the years following the rise of Donald Trump, The Federalist finally went all in on this model.

This little tragedy is just a microcosm of what has gone wrong with the conservative movement more broadly, and the best way I can sum it up is that conservatism has become merely reactionary. I mean that in the literal sense: It has no well-defined ideological and moral core but is merely reacting against whomever it regards for the moment as its enemies. Donald Trump is the focal point of this reactionary politics right now, but he is only a symptom.

In the middle of the 20th century, conservatism went from being dismissed as a set of “irritable mental gestures” to having several competing ideological frameworks—some more “libertarian,” some more religious. These all found common cause in the fight against Soviet communism—but it is now clear, in retrospect, that in the absence of such a defined enemy (radical Islam served the role briefly), conservatism is falling apart. Not only is it losing whatever unity it had. It is losing its own sense of self-definition and instead is degrading back to the level of irritable mental gestures.

Nothing exposes this like the right’s response to the coronavirus. Conservatives have been almost comically prone to grasping at quack pseudo-science and wild speculation on social media, anything that will help them cast doubt on the real and evident epidemiology of a disease. Why? Simply to poke a finger in the eye of the mainstream media, the experts, the “Deep State,” the “elites.” All that is left of conservatism is “own the libs”: If their partisan enemies are for it, the conservatives are against it, and there is no other, deeper reality to consider.

This needs to be a moment for conservatism to take stock and realize how profoundly it has hollowed itself out. A moment of crisis is an opportunity for an intellectual movement to demonstrate what it has to offer the world. In response to the coronavirus, large parts of conservatism have had nothing to offer but the reflex of petty partisanship.