Supreme Court Justice Samuel Alito on Thursday sounded an alarm about restrictions imposed because of the coronavirus pandemic, saying they shouldn’t become a “recurring feature after the pandemic has passed.”
Justice Samuel Alito said the Covid-19 pandemic is exacerbating an assault on religious and speech rights around the U.S. in a pointed speech to the Federalist Society that addressed issues before the court. The 70-year-old justice gave a full-throated defense Thursday night of what he characterized as “second-tier” rights, saying that the pandemic has “highlighted disturbing trends that were already present before the virus struck.”
“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito told the conservative legal group in a 30-minute speech. Among the Covid-related cases Alito singled out is one from Nevada that was before the court this past summer and is pending once again. The case involves limits on church attendance. The court’s July order sided with the state. But four justices, including Alito, dissented.
As he did in his dissent, Alito on Thursday criticized the state’s treatment of casinos more generously than churches. “Forget about worship and head for the slot machines or maybe a Cirque du Soleil show,” Alito said. He also criticized a Maryland judge’s recent ruling suspending in-person rules for receiving a medication abortion, and the Supreme Court’s refusal to reverse that ruling. The two court actions prohibited enforcement of a longtime U.S. Food and Drug Administration rule that requires women to go to a clinic to pick up a medication abortion drug in person during the pandemic.
The deference shown to local governments on the appropriate Covid response should surely extend to the FDA, Alito said. Alito also lamented assaults on free speech and religion in his Thursday speech. He recalled comedian George Carlin’s infamous list of seven words you can’t say on TV. It would be easy to put together a new, longer list of things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations, 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,” Alito said.
But he said that he wanted to emphasize the impact of the restrictions on the rule of law and individual rights as officials have moved to combat the virus.
“We have never before seen restrictions as severe, extensive and prolonged,” he said, and added that the pandemic has resulted in “previously unimaginable restrictions on individual liberty.”
Alito said that the Covid crisis has served as a “sort of constitutional stress test” that has highlighted “disturbing trends” that were present before the virus appeared. He pointed to emergency orders over the summer where the court sided with officials who sought to restrict the number of people who could worship in person and he lambasted his colleagues for ruling in favor of state and local officials even when he thought churches were being treated differently from other entities that had fewer restrictions.
