Supreme Justice Samuel Alito has warned that “the pandemic has resulted in previously unimaginable restrictions on individual liberty” and that freedom of speech is at risk of “becoming a second-tier Constitutional right.”
Speaking to the Federalist Society’s National Lawyers Convention, which was hosted online this year, Alito said, “it is an indisputable statement of fact: we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.”
“Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War.”
“Think about access to the courts, or the constitutional right to a speedy trial,” said Alito. “Trials in federal courts have virtually disappeared in many places who could have imagined that the COVID crisis has served as a sort of constitutional stress test. And in doing so it has highlighted disturbing trends that were already present before the virus struck.”
Alito shared his concern about the growing “dominance of lawmaking by executive fiat rather than legislation.” Under the umbrella of emergency and disaster declarations, non-elected experts as opposed to elected representatives have pushed for sweeping restrictions which “confer enormous executive discretion” at the expense of fundamental rights.
Alito discussed Jacobson v. Massachusetts, a 1905 case in which the U.S. Supreme Court upheld forced vaccinations related to a smallpox outbreak:
"So what are the courts doing in this crisis, when the constitutionality of COVID-19 restrictions has been challenged in court, the leading authority cited in their defense is a 1905 supreme court decision called Jacobson versus Massachusetts. The case concerned an outbreak of smallpox in Cambridge, and the court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge. But to return to the serious point, it’s important to keep Jacobson in perspective, its primary holding 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."
Alito said that the Supreme Court’s refusal to intervene in the case of Nevada’s draconian coronavirus measures that explicitly targeted churches sent the message that:
If you go to Nevada, you can gamble, drank 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] this: forget about worship and head for the slot machines, or maybe a cirque du soleil show.
Now deciding whether 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 first amendment which protects religious liberty; you will not find a craps clause or a blackjack clause or a slot machine clause. Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship. But the [supreme] 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.
Alito also warned that “in certain quarters, religious liberty is fast becoming a disfavored, right.” He noted that the Religious Freedom Restoration Act (RFRA) “had almost universal support” in Congress in the 1990s, with the U.S. House voting it into law unanimously and the Senate supporting it 97 to 3.
But the Little Sisters of the Poor “have been under unrelenting attack for the better part of a decade” since the Obama administration tried to get them to participate in the provision of contraception and life-ending drugs and devices.”
The justice then turned his attention to Washington state, which “adopted a rule requiring every pharmacy to carry every form of contraceptive approved by the Food and Drug Administration, including so called morning after pills, which destroy an embryo after fertilization.”
“A pharmacy called Ralph’s was owned by a Christian family opposed to abortion; they refuse to carry abortifacients. If a woman came to the store with a prescription for such a drug, the pharmacy referred her to a nearby store that was happy to provide it,” Alito explained. “And there were 30 such stores within five miles of Ralph’s. But to the state of Washington, that was not good enough – Ralph had to provide the drugs itself or get out of the state.”
He also discussed the devastating effect of Obergefell v. Hodges, which imposed same-sex “marriage” on all 50 states, on freedom of speech and freedom for those who uphold the real definition of marriage.
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Alito’s speech provoked the ire of leftists, with Slate’s Mark Joseph Stern calling it a “grievance-laden tirade against Democrats.”
“Flouting his ethical obligations, Alito waded into fierce political debates over public health during a pandemic, reproductive rights, LGBTQ equality, and other issues that routinely come before his court. It is wildly inappropriate for a justice to assume the role of Fox News commentators, and unwise in light of progressives’ mounting doubt about the Supreme Court’s legitimacy,” Stern claimed.
The late Justice Ruth Bader Ginsburg frequently made comments in support of leftist causes that many considered “partisan.”
“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 concluded. “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.’ For all Americans, standing up for our Constitution and our freedom is work that lies ahead. It will not be easy work. But when we meet next year, I hope we will be able to say that progress was made. At that time I trust we will be back together in the flesh.”