Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
Justice Samuel Alito stirred controversy with a speech at Notre Dame Law School’s Religious Liberty Initiative in Rome last week. The video of the event was publicized Thursday by the school.
In what began as a serious speech about the need to protect religious liberty, Alito mocked foreign leaders who criticized the controversial decision he authored in the Dobbs v. Jackson case, which ended a federal right to abortion last month.
He then told his audience of mostly friendly law professors on a Roman holiday, “I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law…”
“One of these was former Prime Minister Boris Johnson,” Alito said before pausing for comedic effect. “But he paid the price,” he went on to add, in reference to Johnson’s resignation earlier this month.
Undoubtedly emboldened by the scattered laughter and light applause inspired by his Boris Johnson snipe, Alito then followed with a comment that fell completely flat. “But what really wounded me, what really wounded me, was when the Duke of Sussex addressed the United Nations and seemed to compare the decision, whose name may not be spoken, with the Russian attack on Ukraine.”
The Ukraine comment elicited an uncomfortable silence, which seemed to indicate the audience was confused about whether the story was meant to be funny or merely a reflection of Alito’s seemingly low opinion of Prince Harry, Duke of Sussex.
Alito’s comments about the Prime Minister and the Duke of Sussex were inappropriate for any Supreme Court Justice speaking in a foreign country or, for that matter, even in the United States. The court usually declines ruling on issues that involve foreign policy as the Constitution generally leaves these matters exclusively to the president, with the occasional advice and consent of Congress. There is no mention in the Constitution of roving Supreme Court Justices attacking foreign leaders who disagree with the court’s pronouncements.
This is a critical time for the reputation and stability of the Supreme Court, given the substantial anger expressed by many Americans concerning the reversal of Roe v. Wade after 49 years. There have been “court-packing” proposals supported by many in Congress. Both House Speaker Nancy Pelosi and President Joe Biden have suggested a commission to study the idea. The proposal would increase the number of Supreme Court justices, thereby diluting the power of the court’s current conservative wing.
With his speech in Rome, Alito demonstrated that he is no Antonin Scalia, whose wit and charm in public speaking appearances impressed many, including even those who disagreed with his conservative politics.
Lots of Americans were undoubtedly surprised that Alito or any Supreme Court justice would be permitted to make public comments about a recent Supreme Court decision. Televised congressional hearings concerning nominees appointed to the Supreme Court have schooled Americans that they will always decline or deflect direct answers relating to any issue that may come before the court.
At his own confirmation hearing in 2006, Alito deflected questions about Roe v Wade with a version of an answer given by many other conservative nominees to the court saying that the decision was “an important precedent of the Supreme Court” and “it has been on the books for a long time.” This answer was then supplemented by an Alito comment suggesting that he wouldn’t pre-commit to his position on future cases because he wouldn’t want any litigant to believe he had already made up his mind about a case without first hearing the facts.
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Many Americans were probably shocked to hear a Supreme Court justice making a public speech of any kind. Although the justices do occasionally make public speeches, they are normally scrupulous in avoiding any discussion of issues related to pending or prospective cases. And issues regarding abortion are always on the docket of federal courts across the nation on their potential journey to the Supreme Court. The Dobbs v. Jackson case will not end litigation concerning the nuances of abortion-related laws throughout the nation.
Public confidence in the court does not require justices to avoid all speech-making, but it does require them to be sensible and discreet in the topics they choose. Alito has demonstrated extraordinarily bad judgment in discussing the Roe v. Wade controversy in a foreign nation, even in jest, while cases related to the abortion issue are pending in the United States. Discussions concerning this important issue by Supreme Court justices should take place in open and public American courtrooms rather than before a private group in the auditorium of a foreign nation.