During a Federalist Society speech last night, Supreme Court Justice Samuel Alito called attention to the legal issues raised by the sweeping social and economic restrictions that all but a few states imposed this year in response to the COVID-19 pandemic. "The pandemic has resulted in previously unimaginable restrictions on individual liberty," Alito noted in his remarks, which he delivered via Zoom. "We have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020."
One of the issues raised by those restrictions is the extent of executive authority in dealing with emergencies. The COVID-19 lockdown imposed by Nevada Gov. Steve Sisolak, for example, was based on a statute that gave him the authority, in the event of "a natural, technological or man-made emergency or disaster of major proportions," to "perform and exercise such…functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population." As Alito noted, "to say that this provision confers broad discretion would be an understatement."
While "I'm not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies," Alito said, "laws giving an official so much discretion can, of course, be abused. 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."
In Jacobson v. Massachusetts, the 1905 ruling that was widely cited as a justification for COVID-19 lockdowns, the Supreme Court rejected a challenge to mandatory smallpox vaccination. But that situation was quite different from edicts ordering all "nonessential" businesses to close and commanding hundreds of millions of Americans to remain in their homes except for government-approved purposes. Jacobson's "primary holding," Alito noted, "rejected a substantive due process challenge to a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited, unreviewable discretion."
To the contrary, the Court in Jacobson noted that the public health powers exercised by state and local governments, while broad, are not unlimited. Those powers "may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression," Justice John Marshall Harlan noted. "An acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons."
The question confronting courts right now is when disease control measures exceed those bounds. While Alito did not venture a general answer, he cited as an example a case the Supreme Court already has considered, involving Nevada's restrictions on religious services. Under Gov. Sisolak's reopening plan, the rules for houses of worship were stricter than the rules for other venues—including casinos, bars, restaurants, gyms, arcades, and bowling alleys—where the risk of virus transmission was at least as high. The Court nevertheless declined to hear a First Amendment challenge arguing that the state was engaging in unconstitutional discrimination against religious activities.
Alito, joined by Justices Clarence Thomas and Brett Kavanaugh, dissented from that decision, and last night he recapitulated his take on the case. "If you go to Nevada," he said, "you can gamble, drink, and attend all sorts of shows. But here's what you can't do: If you want to worship and you're the 51st person in line, sorry, you are out of luck. Houses of worship are limited to 50 attendees. The size of the building doesn't matter. Nor does it matter if you wear a mask and keep more than six feet away from everybody else. And it doesn't matter if the building is carefully sanitized before and after a service. The state's message is: Forget about worship and head for the slot machines, or maybe a Cirque du Soleil show."
In Alito's view, "deciding whether to allow this disparate treatment should not have been a very tough call." In the Constitution, he said, "you will see the Free Exercise Clause of the First Amendment, which protects religious liberty," but "you will not find a craps clause or a blackjack clause or a slot machine clause. Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship. But the Court nevertheless deferred to the governor's judgment, which just so happened to favor the state's biggest industry and the many voters it employs."
Alito contrasted the outcome of that case with the pandemic-inspired injunction that a federal judge in Maryland issued in July against enforcement of the Food and Drug Administration's requirement that women visit a health care provider before obtaining the abortion drug mifepristone, a.k.a. RU-486. In light of the COVID-19 risks it entailed, U.S. District Judge Theodore D. Chuang concluded, that requirement imposed an "undue burden" on the constitutional right to abortion.
Last month, the Supreme Court declined to issue a stay against that injunction, saying "a more comprehensive record would aid this Court's review." Alito, joined by Thomas, dissented. "If deference was appropriate" in the Nevada case, Alito said last night, "then surely we should have deferred to the federal Food and Drug Administration on an issue of drug safety." But because the case involved abortion rights rather than religious liberty, he suggested, the plaintiffs were more successful.
Leaving aside Alito's perspective on Roe v. Wade, he is no doubt right that progressives tend to view abortion restrictions, even when they are imposed in the name of fighting COVID-19, with more skepticism than they apply to limits on church services. Lockdowns that classified abortion as a nonessential medical service have been successfully challenged in several states. For the many Americans who supported those challenges, preventing women from obtaining abortions was a clear example of what Justice Harlan was talking about in Jacobson: disease control measures that are "arbitrary," "unreasonable," and go "far beyond what [is] reasonably required for the safety of the public," requiring courts "to interfere for the protection of such persons."
Slate's Mark Joseph Stern, who described Alito's speech as "ultrapartisan," cited the justice's discussion of COVID-19 restrictions to illustrate that point. But the constitutionality of specific disease control measures is not, or at least should not be, a partisan issue. It is something that should concern any American who values the freedoms protected by the Constitution and is wary of well-intentioned policies that override them in the name of the greater good.
While "I am not diminishing the severity of the virus's threat to public health," Alito said, it's clear that "the COVID crisis has highlighted constitutional fault lines." He warned that "there is only so much that the judiciary can do to preserve our Constitution and the liberty it was adopted to protect." He closed by paraphrasing Judge Learned Hand: "Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it."