Then he told his audience of mostly friendly law professors on a Roman holiday, “I have had the honor of writing the term, I believe, the only Supreme Court decision in the history of that institution criticized by a whole series of foreign leaders who took the full satisfaction of commenting on American law …”
Undoubtedly, Alito was encouraged by the scattered laughter and light applause inspired by his Boris Johnson sniper, and then followed by a completely downed comment. “But what really struck me, what really struck me, was when the Duke of Sussex addressed the United Nations and seemed to compare the resolution, whose name may not be pronounced, to the Russian attack on Ukraine.”
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 even in the United States. The court usually declines to rule on cases involving foreign policy because the Constitution generally leaves these matters to the president exclusively, with the occasional advice and approval of Congress. There is no mention in the Constitution of itinerant Supreme Court justices attacking foreign leaders who disagree with the court’s pronouncements.
Through his speech in Rome, Alito showed that he was not Antonin Scalia, whose wit and charm in the emergence of public oratory impressed many, including those who disagreed with his conservative policy.
Many Americans were undoubtedly surprised that Alito or any Supreme Court justice would be allowed to make public comments about a recent Supreme Court decision. Televised congressional hearings on nominations to the Supreme Court have taught Americans that they will always refuse or distort direct answers to any case that may come before the Court.
Many Americans would probably be shocked to hear a Supreme Court justice give a public speech of any kind. Although judges sometimes make public speeches, they are usually meticulous in avoiding any discussion of issues relating to pending or potential cases. And issues related to abortion are always on the agenda of federal courts across the country on their potential trip to the Supreme Court. Dobbs v. Jackson will not end litigation over the nuances of abortion-related laws across the country.
Public confidence in court does not require judges to avoid all their rhetoric, but it does require them to be sane and judicious on the subjects of their choice. Alito showed unusually poor judgment in discussing the Roe v. Wade controversy in a foreign country, even as a jest, while cases regarding the abortion issue are pending in the United States. Discussions on this important issue by Supreme Court justices should take place in the open and public courtrooms of the United States and not in front of a private group in a foreign state auditorium.