Justice Samuel Alito joined Weekly Standard editor Bill Kristol for a 90-minute conversation about life, baseball and a few recent Supreme Court decisions.
Alito expressed concern about what “liberty” means following the decision in Obergefell v. Hodges.
The 14th Amendment’s Due Process Clause, which prohibits the deprivation of life, liberty or property without due process of law, has been an avenue for protecting substantive rights since at least the early twentieth century. Alito said:
[T]he jurisprudential question is what limits the definition—how do we determine what liberty in the 14th Amendment means? Liberty means different things to different people. For libertarians, for classical liberals, it does include the protection of economic rights and property rights. For progressive social democrats, it includes the protection, a right to liberty means freedom from want.
Alito described what he sees as the current Supreme Court’s conception of liberty, as evidenced by the majority opinion in Obergefell, which was authored by Justice Anthony Kennedy.
The Court’s conception…is a very postmodern idea; it’s the freedom to define your understanding of the meaning of life. … It’s the right to self-expression. So if all of this is on the table now, where are the legal limits on it?
Alito pointed out that under this view, “liberty” is in the eye of the beholder: A libertarian Supreme Court justice might be willing to throw out minimum wage laws under the “liberty of contract” or zoning laws as violating property rights; a socialist justice might decide that “liberty” includes free college tuition and a guaranteed annual income.
Alito noted that, in earlier cases, the Court had attempted to place limits on what “liberty” protects.
Since “life” and “property” are relatively clear, “liberty” is where lawyers can get creative in pushing for new constitutional rights. In Washington v. Glucksberg (1997), the Court held that the 14th Amendment does not protect a “right to die” and states may ban assisted suicide.
Appealing to tradition, the Court noted that “for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.”
Alito pointed out that following Glucksberg, liberty “protect[ed] those rights that are deeply rooted in the traditions of the country.”
By contrast, the decision in Obergefell turned back attempts to limit substantive due process.
Alito said, “The Obergefell decision threw that out, did not claim that there was a strong tradition of protecting the right to same-sex marriage, this would have been impossible to find. So we are at, we are at sea, I think. I don’t know what the limits of substantive liberty protection under the 14th Amendment are at this point.”
He questioned the Court’s authority to rule this way:
If it’s not in the text of the Constitution or it’s not in something that is objectively, objectively ascertainable, if it’s just whatever I as an appointee of the Supreme Court happens to think is very important…it raises questions of legitimacy, it raises practical questions because the more the Court does this sort of thing, the more the process of nomination and confirmation will become like an election. It will become like a political process.
The Court is not simply another political branch, and the justices are not (and shouldn’t act like) politicians by another name. The decision in Obergefell raises a number of concerns about “liberty” and the Supreme Court as an institution. Justice Alito, like many conservatives, is rightly concerned about what sort of precedent Obergefell will set, and how it will affect controversial societal questions in the future.
A full video of the interview can be found here.
This piece originally appeared in The Daily Signal
