Alito, 70, told a Federalist Society virtual convention that “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. 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?” he said.
“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 trend, according to the justice, is how executive actions have increasingly replaced legislation as a means to enact new laws.
“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,” Alito said.
“Every year, administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarf 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.”
Alito referenced law from Nevada that gives the governor a broad mandate to “perform and exercise such functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population” in the event of a technological, natural, or manmade emergency or disaster of major proportions.
“Laws giving an official so much discretion, can of course, be abused,” the justice said.
“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.”
When COVID-19-related restrictions have been challenged in court, defenders have often cited Jacobson v. Massachusetts, a 1905 Supreme Court decision that concerned an outbreak in smallpox. The court upheld an ordinance that required vaccinations to stop the disease from spreading.
That decision “did not involve sweeping restrictions imposed across the country for an extended period,” Alito said, adding: “And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.”
Alito led with the caveat that he was not diminishing the seriousness of the pandemic or saying anything about the legality of COVID-19-fueled restrictions.
Alito has served on the court since 2006. He was nominated by President George W. Bush.
The rare public address by a justice drew criticism from some lawyers.
“This speech is like I woke up from a vampire dream,” Kim Wehle, a University of Baltimore law professor and former federal prosecutor, wrote on social media.
“Unscrupulously biased, political, and even angry. I can’t imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court.”