In a recent speech delivered to the Federalist Society at their annual convention in Washington, D.C., U.S. Supreme Court Justice Samuel Alito warned that the government’s response to the COVID-19 pandemic has led to “previously unimaginable” restrictions on American civil liberties.
Alito, 70, also spoke about the dangers posed to free speech by intolerant leftist law schools and defended the legacy of the Federalist Society, an organization of conservative and libertarian lawyers and judges who support textualist and originalist interpretations of the U.S. Constitution in law.
“Unfortunately, tolerance for opposing views is now in short supply in many law schools, and in the broader academic community,” Alito said. “When I speak with recent law school graduates, what I hear over and over is that they face harassment and retaliation if they say anything that departs from the law school orthodoxy.”
He expressed thanks for Federalist Society members and judges that stood up to an attempt to ban federal judges from being members in the society and for defending free speech. Then, turning to the topic of this year’s convention, he addressed the coronavirus pandemic and its affect on the rule of law.
“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito said.
He clarified that he does not mean to diminish the severity of the virus’ threat to public health, and he did not weigh in on the legality of certain COVID-19 restrictions. But he 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. 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 tied this unprecedented expansion of government power to the ideals of early 20th century progressives, who sought to empower “an elite group of appointed experts” to implement policies that would be more “scientific.” Their “dream,” Alito remarked, “has been realized to a large extent” through the creation of the administrative state.
“Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives,” Alito noted. “And what have we seen in the pandemic? Sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion.”
Since the pandemic began, state governors have wielded broad authority to impose coronavirus restrictions by executive order, rather than by laws passed through the several state legislatures. In some cases, like in Michigan, courts have ruled that governors illegally exceeded their authority in imposing coronavirus restrictions without the consent of state lawmakers.
“Laws giving an official so much discretion can of course, be abused,” Alito warned. “And whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed.”
He went on to say that the Supreme Court and other courts “cannot close their eyes” when fundamental rights are restricted.
Continuing, Alito lamented that “religious liberty is fast becoming a disfavored, right.” He discussed court cases involving the Little Sisters of the Poor, a group of nuns that was persecuted by the Obama administration for refusing to provide health insurance plans that provide contraceptives to their employees, and Masterpiece Cakeshop, whose owner Jack Phillips refused to create a cake celebrating same-sex marriage. Both cases came before the Supreme Court.
“For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry and it can’t be tolerated even when there’s no evidence that anybody has been harmed,” he said.
“The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs,” Alito declared, arguing Christians deserve the same protections that religious minorities receive in this country under the First Amendment.
He also discussed coronavirus restrictions that “blatantly discriminated” against places of worship, noting that Nevada opened casinos while restricting worship in churches to 50 attendees.
“Now deciding whether to allow this disparate treatment should not have been a very tough call, take a quick look at the Constitution,” Alito said. “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.”
Yet the court deferred to the governor of Nevada’s judgment and let the restrictions on churches remain in place.
“Religious liberty is in danger of becoming a second-class right,” Alito warned, before turning to free speech more broadly and the Second Amendment.
“The rights of the free exercise of religion is not the only ones cherished freedom that is falling in the estimation of some segments of the population,” Alito said. “Support for freedom of speech is also in danger. And COVID rules have restricted speech in unprecedented ways.”
He criticized college campuses for discriminating against speakers with certain viewpoints, noting that “even before the pandemic, there was growing hostility to the expression of unfashionable views.”
“You can’t say that marriage is the union between one man and one woman,” Alito said as an example. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
That this would happen after our decision in Obergefell should not have come as a surprise. Yes, the opinion of the court included words meant to calm the fears of those who claim to traditional views on marriage. But I could say and so did the other justices in dissent, where the decision would lead. I wrote the following: “I assume that those who claim to old beliefs will be able able to whisper their thoughts in the recesses of their homes. But if they repeat those of us 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. Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second tier constitutional right.
The Second Amendment is “the ultimate second tier constitutional right in the minds of some,” Alito continued.
In his conclusion, Alito said that while the Supreme Court has done “a lot of good work” to protect American liberties and defend the Constitution, ultimately it is up to the American people to defend their rights.
“… there is only so much that the judiciary can do to preserve our Constitution, and the Liberty it was adopted to protect. 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.”