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Law360 (November 12, 2020, 11:14 PM EST ) In a fiery speech Thursday night, U.S. Supreme Court Justice Samuel Alito Jr. said public health measures to combat the coronavirus had placed "previously unimaginable restrictions on individual liberty" and warned against giving too much power to state officials.
Justice Alito criticized the Supreme Court's recent rulings on state coronavirus restrictions in a video address to the conservative Federalist Society on Thursday night, which has been holding its annual conference this week over Zoom.
The 70-year-old George W. Bush appointee suggested the court has been deferring too much to public health officials, especially as it relates to bans on large religious gatherings.
"The pandemic has resulted in previously unimaginable restrictions on individual liberty," Justice Alito said. "We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020."
Justice Alito insisted that he was not "saying anything about the legality of COVID restrictions," but he also said that the pandemic has highlighted "disturbing trends" of "lawmaking by executive fiat rather than by legislation."
He cited the Supreme Court's decision in July refusing to lift Nevada's 50-person limit on religious gatherings in a case brought by a church. Justice Alito, who dissented in the case, pointed out that the governor's order allowed casinos and other businesses to go over that limit and host up to 50% of building capacity. The states' message, he said Thursday, was clear: "Forget about worship and head to the slot machines or maybe a Cirque du Soleil show."
Justice Alito was in the minority in the Nevada case and a similar one out of California. But that may no longer be the case in religious challenges to COVID-19 restrictions going forward. Justice Amy Coney Barrett's replacement of the late Justice Ruth Bader Ginsburg could make those lawsuits more successful.
Just hours before his address on Thursday, the Roman Catholic Diocese of Brooklyn asked the Supreme Court for emergency relief from Democratic Gov. Andrew Cuomo's limits on religious gatherings.
Justice Alito, a Roman Catholic known for his strong conservative views, touched on a number of controversial topics in his address to the Federalist Society, including abortion, same-sex marriage and gun rights. Continuing a theme of his recent speeches, Justice Alito said religious freedom is "in danger of becoming a second-class right."
"The question we face is whether our society is inclusive enough to tolerate people with unpopular religious beliefs," he said.
Justice Alito also brought up a Supreme Court case heard last term over a New York City ordinance restricting the transportation of firearms. He criticized an amicus brief written by Democratic senators urging the court not to use the case as a vehicle for a major Second Amendment ruling. The brief referenced public sentiment in favor of restructuring the court "in order to reduce the influence of politics," which Republicans interpreted as a threat should the court not rule the way he wanted.
Justice Alito called the brief "an affront to the Constitution and the rule of law."
"It is, therefore, wrong for anybody, including members of Congress, to try influence our opinions by anything other than legal argumentation," he said.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
