Alito: COVID Crisis Has Been a ‘Constitutional Stress Test’

November 13, 2020 by Dan McCue
Supreme Court Justice Samuel Alito, Jr.

WASHINGTON – Justice Samuel A. Alito, Jr., told the Federalist Society in a keynote address Thursday night the coronavirus pandemic has led to “previously unimaginable restrictions on individual liberty.”

“I am not diminishing the severity of the virus’s threat to public health,” Alito continued in a speech delivered via Zoom to the society’s National Lawyers Convention, an annual event held virtually this year due to the pandemic.

“I’m not saying anything about the legality of COVID restrictions, nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker,” he said.

“All I am saying is this … we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”

Alito, one of the court’s most conservative members, prefaced his remarks by saying he hoped they would not be “twisted” or “misunderstood,” but added that after 20 years in Washington, he wasn’t “overly optimistic.”

He did, in fact, acknowledge the “heavy human toll” of the months-long pandemic: “The thousands dead and hospitalized, the millions who are unemployed or had their dreams of owning their own business dashed.”

And said it would have been unimaginable before the pandemic that events that would otherwise be protected by the right of freedom of speech would be off-limits and inaccessible for so long.

“Think of all … the live speeches, conferences, lectures, meetings … churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur,” he said. “Think about access to the courts or the Constitutional right to speedy trials in federal court … these things have virtually disappeared in many places.”

The Supreme Court itself has been closed to the public since March, and the justices hold their meetings and hear oral arguments via teleconference.

“Who could have imagined that the COVID crisis would serve as a sort of a Constitutional stress test? And in doing so, it has highlighted disturbing trends that were already present before the virus struck.”

Among the trends the virus has exacerbated, Alito said, is the growing dominance of “lawmaking by executive fiat rather than legislation.”

“The vision of early 20th Century progressives and the New Dealers of the 1930s was that policymaking would shift from narrow-minded elected legislators to an elite group of appointed experts — in a word, policymaking would become more scientific,” he said.

“That dream has been realized to a large extent,” Alito continued.

“Every year administrative agencies acting under broad delegations of authority, churn out huge volumes of regulations that dwarf the statutes enacted by the people’s elected representatives,” he said.

The justice said since the onset of the pandemic, “sweeping” restrictions have been imposed, for the most part, under statutes that confer enormous executive discretion.

As an example, Alito pointed to a Nevada law that allowed the governor – in any kind of declared emergency – to exercise any “functions, powers and duties” necessary to “promote safety .. and protect the civilian population.”

“To say that this provision confers broad discretion would be an understatement,” he said.

But again Alito stressed he wasn’t passing judgment on this particular statute, merely using it to illustrate “where the law in general has been going for some time” — the direction of government by executive officials thought to be implementing politics based on some sort of expertise.

The problem with giving government officials so much discretion is that it can easily be abused, the justice said.

“Whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed,” Alito said. “All sorts of things can be called an ’emergency’ or ‘disaster of major proportions.’ Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.”

Alito said when the Constitutionality of COVID restrictions have been challenged in the court, the case most often cited in legal briefs is a Supreme Court decision from 1905 called Jacobson v. Massachusetts.

The underlying lawsuit grew out of a smallpox outbreak in Cambridge, Mass., and the court upheld the constitutionality of an ordinance that required vaccination actions to prevent the disease from spreading.

“I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world,” said Alito, a Princeton and Yale graduate, taking a humous jab at Harvard in an otherwise serious speech.

“It would be good if what originates in Cambridge stayed in Cambridge,” he said.

But turning serious again, Alito said it’s important to keep Jacobson in perspective.

“It rejected a substantive due process challenge to a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion,” he said.

If the COVID restrictions themselves have highlighted a movement toward rule by experts, litigation about those restrictions has pointed up emerging trends in the assessment of individual rights, the justice said.

“This is especially evident with respect to religious liberty,” Alito said.

This past summer, the Supreme Court received two applications to stay COVID restrictions, one from California, the other from Nevada, that the justice said “blatantly discriminated against houses of worship.

“In both cases, the court allowed the discrimination to stand. The only justification given was that we should defer to the judgment of governors, because they have the responsibility to safeguard the public health,” Alito said.

He then asked his Federalist Society audience to consider what that deference meant in the Nevada case.

“After initially closing the state’s casinos, the governor opened them up and allowed them to admit 50% of their normal occupancy,” he said. “Since many casinos are enormous, that is a lot of people.

“And not only did the governor open up the casinos, he made a point of inviting people from all over the country to visit the state,” Alito continued. “So if you go to Nevada, you can gamble, drink and attend all sorts of shows. But here’s what you can’t do: If you want to worship and you’re the 51st person in line, sorry, you are out of luck. Houses of worship are limited to 50 attendees. The size of the building doesn’t matter. Nor does it matter if you wear a mask and keep more than six feet away from everybody else. And it doesn’t matter if the building is carefully sanitized before and after a service.

“The state’s message is forget about worship and head for the slot machines or maybe a Cirque du Soleil show,” he said.

Alito maintained that deciding whether or not to allow this disparate treatment should not have been a very tough call.

“Take a quick look at the Constitution. You will see the Free Exercise Clause of the 1st Amendment which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause,” he said.

“Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship. But the court nevertheless deferred to the governor’s judgment, which just so happened to favor the state’s biggest industry and the many voters it employs,” he said.

Alito said in light of such rulings, he’s worried that religious liberty might become a “second-class” right. He also weighed in with similar concerns about the Second Amendment.

But it was when he weighed in on Freedom of Speech that he made his most controversial comments of the night.

Sticking to his theme, he began by observing the “support for Freedom of Speech … is in danger, and COVID rules have restricted speech in unprecedented ways.

“Attendance at speeches, lectures, conferences, conventions, rallies, and other similar events has been banned or limited, and some of these restrictions are alleged to have included discrimination based on the viewpoint of the speaker,” Alito said.

Even before the pandemic, the justice said, “there was a growing hostility to the expression of unfashionable views,” something he described as a “surprising” development.

Here he mentioned Federal Communications Commission V. Pacifica Foundation, the famous “Seven Dirty Words You Can’t Say on Television” case from the early 1970s, involving a routine by the late comedian George Carlin.

Carlin himself wasn’t directly involved in the case, which began as a lawsuit filed by a listener after the routine, which featured the seven words, was played by station WBAI in New York.

In 1978 the justices ruled the FCC could impose penalties on broadcasters who presented obscene, indecent, or profane language outside of certain time periods or in certain cases. It also limited the First Amendment rights of broadcasters.

Despite this ruling, Alito said, “Today you can see shows on your TV screen in which the dialog appears at times to consist of almost nothing but the seven words. In fact, Carlin’s list seems like a quaint relic, but it would be easy to put together a new list called things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations.

“And there wouldn’t just be seven items on that list, 70 would be closer to the mark. But I’ll mention just one that I’ve discussed in a published opinion,” he said.

He then launched into a criticism of the court’s decision in Obergefell v. Hodges that granted same-sex couples the right to marry.

“You can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought,” he said. “Now it’s considered bigotry.

“That this would happen after our decision in Obergefell should not have come as a surprise,” he said.

“Yes, the opinion of the court included words meant to calm the fears of those who cling to traditional views on marriage, but I could see … where the decision would lead,” he continued.

Alito then quoted his dissent in which he wrote, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those views in public, they will risk being labeled as bigots, and treated as such by governments, employers, and schools. That is just what is coming to pass.”

“One of the great challenges for the Supreme Court going forward will be to protect freedom of speech,” he added, saying that he wanted to close by getting back to some basics.

“The Supreme Court was created by the Constitution, not by Congress. Under the Constitution, we exercise the judicial power of the United States,” he said. “Congress has no right to interfere with that work any more than we have the right to legislate. Our obligation is to decide cases based on the law period.

“During my 15 years on the court, a lot of good work has been done to protect freedom of speech, religious liberty, and the structure of government created by the Constitution. All of this is important. But in the end, there is only so much that the judiciary can do to preserve our Constitution and the Liberty it was adopted to protect,” Alito said.

“As Learned Hand famously wrote, ‘Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it,'” he added.

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