Supreme Court Associate Justice Samuel Alito warned Thursday night during an address to the Federalist Society that freedoms and liberty are under “unimaginable restriction” due to recent coronavirus lockdowns, as well as alleged attacks on religious freedom.
“The pandemic has resulted in previously unimaginable restrictions on personal liberty,” Alito said, according to the New York Post (NYP). “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
“The COVID crisis has served as a sort of constitutional stress test and in doing so it has highlighted disturbing trends that were already in evidence before the pandemic struck,” the George W. Bush appointee said, according to Politico.
“Whatever one may think about COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed,” Alito said, per the NYP.
Alito likened the use of executive orders to “early 20th progressives” and “the New Dealers of the 1930s” during which “policymaking would shift from narrow-minded elected legislators to an elite group of appointed experts,” according to USA Today. Alito warned that after the pandemic ends, there’s the possibility that numerous things could be deemed and emergency or disaster and warrant executive power.
However, he insisted that he was not opining on the legality of the policies nor “diminishing the severity of the virus’ threat to public health,” according to USA Today.
“I’m a judge, not a policymaker,” he insisted.
Alito said that the restrictions also abridged First Amendment rights, noting that “in certain quarters, religious liberty is fast becoming a disfavored right.” Alito referenced the Supreme Court’s decision to reject a request from a church in Nevada to block enforcement of restrictions on capacity limit. Alito said the rejection “blatantly discriminated against houses of worship,” per USA Today.
“The state’s message is this: ‘Forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.'”
Alito also touched on the threat to religious freedom, noting that recent Supreme Court decisions, including 2015’s Obergefell v. Hodges that ruled same-sex marriage is a constitutional right, created division between those who believe that marriage should be between a man and a woman. (Related: ‘Brazen Abuse Of Our Authority’: Alito, Kavanaugh Criticize LGBT SCOTUS Ruling)
“Until very recently, that’s what the vast majority of Americans thought,” he said, per Politico. “Now, it’s considered bigotry.”
Alito also took a swipe at a brief filed last year by Democratic Senators in a gun rights case where they warned that lawmakers would restructure the court if the court continued to make politically charged rulings, as they claimed.
“It was an affront to the Constitution and the rule of law,” Alito said, per Politico. “It is … wrong for anyone, including members of Congress, to try to influence our decisions by anything other than legal argumentation. That sort of thing has often happened in countries governed by power, not law.”
While Alito’s comments are similar to his opinions in the court, as noted by Politico, others took issue with the justice for sharing overtly political beliefs.
Democratic Rhode Island Sen. Sheldon Whitehouse called Alito a “full-on partisan crusader” in a tweet Friday.
— Sheldon Whitehouse (@SenWhitehouse) November 13, 2020
Democratic Massachusetts Sen. Elizabeth Warren expressed similar views in a tweet as well, calling the justice a “political hack.”
Supreme Court Justices aren’t supposed to be political hacks. This right-wing speech is nakedly partisan. My bill to #EndCorruptionNow restores some integrity to our Court by forcing Justices to follow the ethics rules other federal judges follow. https://t.co/VAjFAqGesN
— Elizabeth Warren (@SenWarren) November 13, 2020