Plenary Panel 4: Justice Alito’s Impact on Religious Liberties & Speech

·1 hr 11 min·5 clips

Judge Menashe introduces a panel exploring Justice Alito's significant impact on religious liberties and speech, featuring three prominent legal scholars.

The episode is a panel discussion from a Federalist Society event in Philadelphia, moderated by Judge Menashe, focusing on Justice Samuel Alito's impact on religious liberties and speech. Professor Stephanie Barclay from Georgetown Law speaks first, tracing three themes in Alito's religious liberty jurisprudence: his addition of rigor to strict scrutiny analysis under RFRA and the Constitution, his systematic assault on the Smith doctrine through narrowing and exceptions, and his commitment to protecting religious liberty for all Americans regardless of faith. She cites cases like Holt v. Hobbs, Fulton, and Hosanna-Tabor, using anecdotes such as Alito's questioning in Holt about beard security risks. Professor Nicole Garnett from Notre Dame Law School addresses two themes: Alito's insistence on full participation of religious institutions in public life and his development of church autonomy doctrine. She highlights his concurrence in Espinoza v. Montana, which exposed the anti-Catholic history of Blaine amendments and influenced state parental choice programs, and discusses his opinions in cases like Gordon College and Yeshiva University. Attorney Matthew Schwartz from Sullivan & Cromwell covers Alito's free speech jurisprudence, noting his absolutist protection of core speech in cases like Janus and Matal v. Tam, but his allowance for regulation in areas like decency, harm, and children's safety, as seen in solo dissents in Stevens (crush videos) and Snyder (funeral protests). The panel then engages in a moderated discussion, debating topics such as whether Alito has neutered Smith, his use of history and tradition versus originalism, and the practical impacts of doctrines like RFRA and Lemon. Audience questions touch on issues like the constitutionality of RFRA post-City of Boerne and the lingering effects of Lemon in lower courts. The episode concludes with an announcement about a new book on Justice Alito.

As heard by us

A formal panel that maps Alito's speech cases with uncommon care.

The panel presents Justice Alito as a strong First Amendment figure, and the discussion stays focused on compelled speech, union dues, and pressure on speech platforms.

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Why you'd press play

You want Alito's free-speech cases with the conference air left in.

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