Conservative Supreme Court Justice Samuel Alito claims religious liberty and freedom of speech are under attack from pandemic restrictions and supporters of gay marriage in extraordinary public speech
- Supreme Court Justice Samuel Alito sounded an alarm about restrictions imposed because of the coronavirus pandemic
- He claimed religious liberty and freedom of speech are under threat
- 'The pandemic has resulted in previously unimaginable restrictions on individual liberty,' Alito said in an address to the conservative Federalist Society
- He also said the legalization of gay marriage had led to its opponents being branded bigots
- Justice dismissed gay couple who sued because they were refused a wedding cake by a baker saying they got a free one anyway
- Alito claimed that television 'consists almost entirely' of offensive words and that students and workers at big corporations cannot speak freely
- His comments were extraordinary speech for a sitting justice and liberal lawyers took to Twitter to criticize Alito for them
Supreme Court Justice Samuel Alito on Thursday sounded an alarm about restrictions imposed because of the coronavirus pandemic, saying religious liberty and freedom of speech are under threat.
This shouldn't become a 'recurring feature after the pandemic has passed,' he said in an extraordinary speech for a sitting Supreme Court justice which passed comment on restrictions imposed by states which could well come in front of him and the other eight justices.
'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.
He also said that the 5-4 Supreme Court decision which legalized same-sex marriage nationwide 'will be used to vilify Americans who are unwilling to assent to the new orthodoxy.'
Alito - a George W. Bush appointee - said that 'you can't say that marriage is between one man and one woman' without being painted as a bigot.
And he dismissed the Colorado same-sex couple refused a wedding cake by a baker saying they were 'given a free cake by another bakery, and celebrity chefs have jumped to the couple's defense.'
Alito said 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.'
Supreme Court Justice Samuel Alito sounded an alarm about restrictions imposed because of the coronavirus pandemic
But he said: '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.
'Whatever one may think about the COVID restrictions, we surely don't want them to become a recurring feature after the pandemic has passed.'
COVID restrictions use what is known as the 'inherent police power' of the states to regulate conduct for the sake of public health, a power which is reserved to the states by the constitution.
However Alito claimed that they were part of a 'vision' which he claimed had started with the New Deal of the 1930s of experts running the country.
'The current 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,' he said.
'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 policy-making 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 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.'
It's uncommon for a Supreme Court justice to weigh in on hot-topic issues in public comments or during a speech - particularly hinting heavily at how he might rule on COVID restrictions.
Several liberal-leaning lawyers took to Twitter to criticize Alito.
'This speech is like I woke up from a vampire dream,' University of Baltimore law professor and former federal prosecutor Kim Wehle wrote. 'Unscrupulously biased, political, and even angry. I can't imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court.'
In his remarks Alito argued First Amendment rights to worship were threatened by the pandemic, which has infected over 10 million Americans.
'Think of worship services! Churches closed on Easter Sunday, synagogues closed for Passover in Yom Kippur,' he said.
'It pains me to say this,' Alito added, 'but in certain quarters, religious liberty is fast becoming a disfavored right.'
The justice said freedom of speech was also under threat generally.
'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,' he said.
Social norms had created a list of things that it was now unacceptable for students, professors and employees to say, he added.
Turning TV critic and offering an unexpected insight into his viewing habits, he cited comedian George Carlin's list of 'seven words you can't say on television' - s**t, f***, p**s, c**t, c**ks****r, motherf*****r, and t*ts - saying modern TV 'appears at times to consist almost entirely of those words.'
He went on: 'But it would be easy to put together a new list called "Things You Can’t Say If You're A Student or Professor at a College or University or an Employee of Many Big Corporations."
'And there wouldn’t be just seven items on that list; 70 times seven would be closer to the mark.
'You can't say that marriage is a union between one man and one woman,' he added.
'Until very recently that's what a vast majority of Americans thought. Now its considered bigotry.'
In an extraordinary speech for a sitting Supreme Court justice, Samuel Alito said religious liberty and freed of expression are under threat because of COVID
The coronavirus has infected more than 10 million Americans and cases are on the rise
In his remarks, the justice was particularly critical of two cases earlier this year where the court sided with states that, citing the coronavirus pandemic, imposed restrictions on the size of religious gatherings.
In both cases, the court divided 5-4 in allowing those restrictions to continue with Chief Justice John Roberts siding with the court's liberals.
In May, the high court rejected an emergency appeal by a California church challenging attendance limits at worship services. The justices turned away a similar challenge by a Nevada church in July.
Alito said in both cases the restrictions had 'blatantly discriminated against houses of worship' and he warned that 'religious liberty is in danger of becoming a second-class right.'
Both cases came to the court before the death in September of Justice Ruth Bader Ginsburg.
The liberal justice's replacement by conservative Justice Amy Coney Barrett could change how the court might come out on similar cases in the future. Currently before the court is a case involving the Catholic church and limits on in-person services in New York where the Diocese of Brooklyn is trying to have a 50-person limit on people going to services overturned.
Alito also attacked a group of five Democratic senators who had used a brief to the Supreme Court on a guns case about restrictions in New York City to warn that it would face calls for reform if it did not rule as they were suggesting. In fact the court avoided a controversial ruling by saying it was essentially moot.
The senators' warning has to some extent come true, with some Democrats talking about expanding the court after Coney Barrett's rushed confirmation before the election.
'This little episode, I am afraid, may provide a foretaste of what the Supreme Court will face in the future, and therefore I don't think it can simply be brushed aside. The senators' brief was extraordinary,' he said.
'I could say something about standards of professional conduct, but the brief involved something even more important: It was an affront to the Constitution and the rule of law.'
The Democrats backing more justices on the courts, or other plans such as term limits or rotating appeals court justices through the court, have been accused of planning 'court packing' by Republicans.
In that scenario the Supreme Court could be asked to rule on whether their plans are constitutional. The size of the court is set by Congress and the Constitution does not lay down any rules on how long justices serve.
Alito's intervention, however, suggests how he could rule on expanding the bench.
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