Supreme Court Justice Samuel Alito said the COVID-19 pandemic became a “stress test” for Americans’ constitutional rights, telling Fox News Sunday’s Shannon Bream that many were willing to make free speech and the free exercise of religion “secondary.”
Alito’s interview, tied to the Oct. 6 release of his book, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country,” revisited arguments he first made in a Nov. 12, 2020 virtual address to the Federalist Society. In that speech, Alito criticized pandemic rules as imposing “previously unimaginable restrictions on individual liberty,” while adding he was not judging whether those measures were good policy. He called it an “indisputable” fact that the nation had “never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020,” and labeled the period a “constitutional stress test.” The remarks drew criticism at the time for being too partisan, according to the source material.
What Alito says the stress test revealed
“I think it was a stress test of our constitutional rights,” Alito told Bream. “It put our loyalty to those constitutional rights, our dedication to those constitutional rights, to the test.” He added: “One of the things that, unfortunately, it disclosed was that many people were willing to downgrade certain constitutional rights: the right to freedom of speech and the right to the free exercise of religion. In particular, they were willing to make those secondary to other things.”
Casinos vs. churches in Nevada
Bream referenced the emergency request in Calvary Chapel Dayton Valley v. Steve Sisolak, in which the Supreme Court voted 5–4 to deny a rural Nevada church’s bid for an injunction against the state’s 50-person cap on worship services. Then–Gov. Steve Sisolak said in April 2020, according to the Reno Gazette Journal, “My primary purpose is to keep people alive and stop the spread of this disease,” noting he had consulted faith leaders.
Alito dissented in that dispute and, in the Fox interview, highlighted what he called a double standard: casinos and other secular venues operating at 50% capacity while churches were tightly capped. “The example of the casinos, I thought, was telling,” he said, describing images of casino patrons not wearing masks even as “no matter how big” a house of worship was, attendance was severely limited.
The bigger question
Alito’s comments, as aired by Fox News Sunday, frame the pandemic as a trial of the country’s willingness to hold fast to constitutional guarantees during a public health crisis.
