Alito: COVID a "Constitutional Stress Test," Has Resulted In "Unimaginable Restrictions On Individual Liberty"
"I'm now going to say something that I hope will not be twisted or
misunderstood. But I have spent more than 20 years in Washington, so I'm
not overly optimistic. In any event, here goes. The pandemic has
resulted in previously unimaginable restrictions on individual liberty,"
Alito said. "Now, notice what I am not saying or even implying, I am
not diminishing the severity of the viruses threat to public health. And
putting aside what I will say shortly about a few Supreme Court cases,
I'm not saying anything about the legality of COVID restrictions. Nor am
I saying anything about whether any of these restrictions represent
good public policy. I'm a judge, not a policymaker. All that i'm saying
is this. And I think 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."
"It pains me to say this, but in certain quarters, religious liberty is
fast becoming a disfavored, right," Alito said. "And that marks a
surprising turn of events. Consider where things stood in the 1990s. And
to me, at least that does not seem like the Jurassic age."
"When a Supreme Court decision called employment division versus Smith, cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment," he continued. "Congress was quick to respond. It passed the Religious Freedom Restoration Act (RFRA). To ensure broad protection for religious liberty. The law had almost universal support. In the house, the vote was unanimous. In the Senate, it was merely 97 to three, and the bill was enthusiastically signed by President Clinton today that widespread support has vanished. When states have considered or gone ahead and adopted their own versions of reference. They have been threatened with punishing economic boycotts."
LITO: The topic of this year's convention is the rule of law and the current crisis. And I take it that the title is intended primarily to refer to the COVID-19 crisis that has transformed life for the past eight months. The pandemic has obviously taken a heavy human toll, thousands dead, many more hospitalized, millions on employed the dreams of many small business owners dashed. But what has it meant for the rule of law,
I'm now going to say something that I hope will not be twisted or misunderstood. But I have spent more than 20 years in Washington, so I'm not overly optimistic. In any event, here goes. The pandemic has resulted in previously unimaginable restrictions on individual liberty. Now, notice what I am not saying or even implying, I am not diminishing the severity of the viruses threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I'm not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I'm a judge, not a policymaker. All that i'm saying is this. And I think 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.
One of these is the dominance of lawmaking by executive Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. 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. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?.
We had a covid related case from Nevada. So I will take the Nevada law as an example.
Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement.
Now, again, let me be clear, I'm not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I'm not passing judgment on this particular issue. I want to make two different points.
First, what we see in this statute, and and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise. And in the purest form, scientific expertise.
Second, laws giving an official so much discretion can of course, be abused. 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. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.
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