Justice Alito unloads on coronavirus restrictions in bombshell Federalist Society speech
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 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.