Supreme Court Justice Samuel Alito commented Thursday on the “previously unimaginable” damage done to individual liberty by prolonged coronavirus restrictions.
In remarks to The Federalist Society delivered via a video feed, Alito talked about religious liberty amid the coronavirus pandemic, freedom of speech and attempts by senators at “bullying” the Supreme Court.
Alito argued that religious rights in particular are under attack.
“The pandemic has obviously taken a heavy human toll: thousands dead, many more hospitalized, millions unemployed, the dreams of many small business owners dashed. But what has it meant for the rule of law?” the Supreme Court justice said.
He continued, “The pandemic has resulted in previously unimaginable restrictions on individual liberty.”
Alito said he was not attempting to downplay the severity of the coronavirus, but was rather reacting to its effects on constitutional liberties.
“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,” he said.
“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 [or] on Yom Kippur,” Alito added.
“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.”
Alito also talked about more generally about the state of religious liberty in this country.
“It pains me to say this,” Alito said later on, “but in certain quarters, religious liberty is fast becoming a disfavored right.”
“For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed.”
Alito went on to point out, “You can’t say that marriage is a union between one man and one woman.”
He continued, “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
Citing the Supreme Court’s 2015 ruling in Obergefell v. Hodges that legalized same-sex marriage, Alito commented on what the implications of the case for First Amendment freedoms have been.
“Yes, the opinion of the court included words meant to calm the fears of those who cling to traditional views on marriage. But I could see — and so did the other justices in dissent — where the decision would lead,” he said.
Quoting his dissent from Obergefell v. Hodges, in which he warned that opponents of same-sex marriage risked eventually “being labeled as bigots and treated as such by governments, employers and schools,” Alito argued Thursday that those predictions were “just what is coming to pass.
“One of the great challenges for the Supreme Court going forward will be to protect freedom of speech,” Alito said. “Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier constitutional right.”
“We should all welcome rational, civil speech on important subjects even if we do not agree with what the speaker has to say,” he also said.
During his remarks, Alito discussed perceived attempts at “bullying the court” by Democrats in the Senate:
Here’s Justice Alito complaining about this amicus brief filed by @SenWhitehouse, @SenBlumenthal, @maziehirono, @SenatorDurbin, and @SenGillibrand, and warning of Democrats’ threats to “restructure” the Supreme Court. https://t.co/ZCJanBeVuS pic.twitter.com/fCJJjc5HMV
— Mark Joseph Stern (@mjs_DC) November 13, 2020
Alito’s comments come as the Supreme Court as become highly publicized and politicized in recent months, with Democrats threatening to “pack” the court with liberals in order to dilute the impact of conservative justices.
Democratic presidential nominee Joe Biden and his running mate, Sen. Kamala Harris of California, both spent the 2020 campaign refusing to say whether or not they supported packing the court with additional justices.
In the meantime, there is speculation the court could have a say in some cases related to the still-contested presidential election.
Alito was nominated to the high court by former President George W. Bush and confirmed by the Senate in 2006.
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