Yesterday, Ed Morrissey covered some of the many headlines coming from Supreme Court Associate Justice Samuel Alito’s recent speech before the Federalist Society. Most of that had to do with religious freedom, the First Amendment and current issues related to those subjects. But there was another, shorter portion of Alito’s remarks I wanted to touch on this weekend. They had to do with the onerous mandates and executive orders being handed down in response to the pandemic. As you will see, Alito is obviously not a fan, though he appears to stop short of declaring such executive actions entirely unconstitutional. (Associated Press)
Supreme Court Justice Samuel Alito on Thursday sounded an alarm about restrictions imposed because of the coronavirus pandemic, saying they shouldn’t become a “recurring feature after the pandemic has passed.”
“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito said in an address to the conservative Federalist Society, which is holding its annual convention virtually because of the pandemic.
Alito noted that he was “not diminishing the severity of the virus’ threat to public health” or saying anything about “whether any of these restrictions represent good public policy.” He cautioned against his words being “twisted or misunderstood.”
Alito clearly seemed to be aware that he was playing with fire here and he walked a fine line between criticizing the authoritarian impulses of some executives while recognizing that some compromises would need to be made in the interest of public safety during a state of emergency. He gave a nod to the severity of the pandemic and said that he wasn’t making any sort of declaration as to whether such orders represent “good public policy.” But you’ll note that he also didn’t say that they are good public policy either.
Perhaps more telling was his next comment. He described the current situation by saying it is an “indisputable statement of fact that we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
Those don’t sound like the words of someone showering praise on executive branch officials for implementing drastic restrictions on the free movement and actions of citizens without the benefit of involving the applicable legislative bodies in the process. But at the same time, it’s impossible to ignore the fact that the lower courts have largely backed the ability of governors and mayors to impose such restrictions during a declared state of emergency. Would the Supreme Court follow a similar pattern?
Perhaps for a limited time, yes. But Alito went on to say “we surely don’t want them to become a recurring feature after the pandemic has passed.” There’s the rub, right? We keep hearing the phrase “after the pandemic has passed” during discussions of lockdowns and bans on social gatherings. But how are we supposed to draw a line saying that the pandemic “has passed?” When there’s a vaccine widely available? When the total number of active cases reaches some arbitrary number?
Surely there’s a limit to the court’s patience in such matters. The linked report reminds us that the Supreme Court heard two cases earlier this year from California and Nevada involving restrictions on attendance of religious services. In both cases, the court refused to strike them down, but it was by a 5-4 margin each time. Chief Justice John Roberts voted with the liberals in each instance while Alito did not. But now, the notorious RBG is no longer with us and Amy Coney Barrett is in her place. How will the court vote if a similar challenge to executive orders reaches them? We can’t be entirely sure, but I think Alito was giving us a hint this week.