Justice Samuel Alito Wants to Be Our Generation’s Moral Crusader
Anthony Comstock has long since died, but Samuel Alito has picked up his moralist mantle in his legal opinions, working to regulate both public information and behavior.
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Anthony Comstock is someone who should have faded into history, a cautionary tale for reminding us what happens when overly Christian types impose their will on the rest of the country. The man has been dead for over a century, and good riddance. But unfortunately, we’ve got our modern-day Anthony Comstock in Supreme Court Justice Samuel Alito.
A rigid moralist, Comstock got Congress to pass the Comstock Act in 1873. It banned “obscene” material from being sent through the mail, which, in Comstock’s fevered brain, meant banning the dissemination of contraception or information about contraception. Comstock believed contraception led to lust and immorality. Following its passage, states passed even more conservative Comstock-style laws, with 14 states banning the mere discussion of contraception or abortion.
Once the law was passed, Comstock got Congress to appoint him a special inspector in the U.S. Postal Service to help enforce it. Comstock took credit for almost 4,000 convictions, was proud of destroying 160 tons of books, and bragged he drove over a dozen people to suicide. This is supervillain-level behavior—being happy about your censorship being so effective that people literally kill themselves.
At root, Comstock was a man out of time. As the world loosened up, he tightened his grip, unable to grasp that his views no longer reflected the sentiment of the country. Or, if he was able to understand it, he simply didn’t care.
People in the grip of a moral panic have no interest in allowing others to make their own choices.
Comstock should have been swept into the dustbin of history, but here we are in 2023 facing similar moral crusaders who seek to regulate both information and behavior. Leading the way is someone with much more power than even Comstock: Alito has picked up Comstock’s moralist mantle.
Now, Comstock had to get his hands dirty. He actually joined the raids and arrested people, including Margaret Sanger’s husband, Bill Sanger. Alito floats above it all, writing formalistic legal decisions and never acknowledging he’s empowered the very worst people in America to hurl the rest of us back into their Victorian-era moral panics.
Alito has been on this grind for a while now, but last year’s decision in Dobbs v. Jackson Women’s Health Organization, which stripped the constitutional right to abortion, gave him time to shine. Alito told two great lies in that opinion. First, he declared, as conservatives always do about this issue, that all the decision did was return the issue to the states, saying that the people of those states “may evaluate those interests differently.” Alito also said the decision didn’t implicate the pre-Roe v. Wade cases, like Griswold v. Connecticut, which legalized contraception.
States controlled by anti-choice conservatives are not simply going to sit by while other states allow abortions. That’s why, since the overturn of Roe, we’ve seen proposals for a nationwide 15-week ban. That’s why the Thomas More Society is drafting model laws for state legislatures that would allow people to sue someone if they help a resident from a state that has banned abortion to get an abortion in a state where it is legal. That’s why a single federal judge in Texas, Matthew Kacsmaryk, is contemplating wiping out access to mifepristone for the entire country.
And just as the mail was weaponized to push Comstock’s view and terrorize those who disagreed, the mail is central to the post-Roe era. Indeed, the Comstock Act has never been repealed, even after birth control became legal. That’s why the Department of Justice had to issue a memo in December 2022 explaining the Comstock Act cannot be read to prohibit sending FDA-approved abortion pills through the mail. But Texas already has a law making it a felony to send abortion pills through the mail, as does Tennessee.
People in the grip of a moral panic have no interest in allowing others to make their own choices. If you genuinely believe that birth control is murder or that it undermines society, you won’t be content with letting other people use it. The very nature of a moral panic is an absolute certainty that if you fail to rescue people from their immorality, the whole of society is lost.
Alito would be furious to hear that he’s either in the grip of a moral panic or the instigator of one. He could never admit that his personal policy preferences drive his legal decisions. He enjoys hanging out with hyper-conservative anti-choice types, dining with one couple even as the Burwell v. Hobby Lobby decision was pending. He’s going to die mad about same-sex marriage, which he whinges about in legal opinions and speeches. And of course, writing the Dobbs decision, which he surely knew would open the door to complete bans on abortion in large swaths of the country, must have been a dream come true.
Like Comstock, society has left Alito’s views behind. Nearly all sexually active women use birth control. A majority in all but seven states believe abortion should be legal. It took nearly 100 years—from passage of the Act in 1973 to Griswold v. Connecticut striking down laws against birth control—to fully undo the damage Anthony Comstock did. Let’s hope it doesn’t take that long to unwind the damage from Samuel Alito.