Alito Quotes Bob Dylan on Religious Freedom: ‘It’s Not Dark Yet, But It’s Getting There’

By Lauretta Brown | November 17, 2016 | 3:09pm EST
Supreme Court Justice Samuel Alito (AP Photo)

( – Supreme Court Justice Samuel Alito opened the national convention of the Federalist Society in Washington, D.C., Thursday with a moving tribute to the late Justice Antonin Scalia but also warned of “unprecedented challenges to our constitutional structure” and that freedom of religion is in “greater danger.”

“Freedom of religion is in greater danger,” Alito cautioned, saying “I am reminded of a song by the latest recipient of the Nobel Prize for Literature: it’s not dark yet, but it’s getting there.”

The justice was referencing Bob Dylan and his song “Not Dark Yet,” a reference greeted with laughter.

Alito continued, citing a case that the Supreme Court refused to review in the term following Scalia’s death, regarding a Washington State law, requiring every pharmacy to sell contraceptives. Christian pharmacists filed a lawsuit due to religious objections, because they believed that some of these drugs act as abortifacients.

“It violates their religious beliefs to sell these drugs,” Alito explained. “Instead of selling them, the pharmacy referred customers to one of more than 30 other pharmacies located within a five-mile radius.”

Bob Dylan. (AP) 

Alito added that “national and local pharmacist’s associations submitted an amicus brief telling us that this practice of referring customers to other pharmacies is standard, because no pharmacy can possibly stock every single drug that is approved by the Food and Drug Administration.”

“In this case, there is strong evidence that the law was enacted to rid the state of those troublesome pharmacists who objected to these drugs on religious grounds,” he concluded, “but the Ninth Circuit sustained the law, and the Supreme Court did not even think that case deserved review.”

Alito dissented from the Supreme Court’s decision not to review the case and was joined in his dissent by Justice Clarence Thomas and Chief Justice John Roberts.

Alito also brought up the importance of preserving constitutional structure, telling the crowd that when Scalia spoke to the students, he would ask, “what is most important about our Constitution?”

“More times than not,” Alito said, “the answer would refer to the Bill of Rights, and Nino (Scalia’s nickname) would say, ‘wrong, what’s most important is the structure, the separation of powers at the federal level and the division of sovereignty between the federal government and the states. Human rights guarantees are worthless without a governmental structure to protect them.’

Supreme Court Associate Justices Antonin Scalia (d. Feb. 13, 2016), left, and Samuel Alito.  (AP) 

“In recent years, however, we are seeing unprecedented challenges to our constitutional structure,” Alito warned.

He cited the 2014 Supreme Court case of Utility Air Regulatory Group v. Environmental Protection Agency as an example.

"Congress wrote certain numbers into an environmental statute, numbers pertaining to pollutants," Alito explained. "Now at the time, Congress had in mind conventional beliefs. It was only there that the Supreme Court held that pollutants under the Clean Air Act refers not just to the kind [of pollutants Congress had in mind] when enacting the statute but also greenhouse gases. Now, if you apply those numbers to the conventional pollutants, they made perfect sense, but if you apply them to greenhouse gases, you get crazy results, as the EPA recognized."

"So, what does the EPA do?" Alito asked. "Well, the EPA had an eraser and had a pen. So, it took the statute and erased the numbers that Congress wrote and wrote in numbers that were more to its liking. Nino's opinion for the court held that this was illegal, but four of our colleagues thought what the EPA did was just fine."

Alito fondly concluded that, “Nino’s voice is sorely missed by the court figuratively and also literally; Nino had a great singing voice.”

Bob Dylan's song "Not Dark Yet" concludes with these lyrics:

I was born here and I’ll die here against my will
I know it looks like I’m moving, but I’m standing still
Every nerve in my body is so vacant and numb
I can’t even remember what it was I came here to get away from
Don’t even hear a murmur of a prayer
It’s not dark yet, but it’s getting there

MRC Store