Justice Samuel AlitoSamuel AlitoThe Hill's Morning Report - Presented by AT&T - Supreme Court lets Texas abortion law stand Biden rips 'extreme' new Texas abortion law Six-week abortion ban goes into effect in Texas MORE’s provocative speech last week before the National Lawyers Convention of the Federalist Society — a powerful group of conservative lawyers that’s been instrumental in the reconfiguration of the federal bench under President TrumpDonald TrumpKinzinger says Trump 'winning' because so many Republicans 'have remained silent' Our remote warfare counterterrorism strategy is more risk than reward Far-right rally draws small crowd, large police presence at Capitol MORE — has stoked strong reactions from critics and defenders alike. Alito’s talk was surely problematic, but for reasons that have largely been overlooked.
Recall just a scant few weeks ago when Justice Amy Coney BarrettAmy Coney BarrettNew Hampshire state representative leaves GOP over opposition to vaccine mandate Barrett: Supreme Court 'not comprised of a bunch of partisan hacks' To infinity and beyond: What will it take to create a diverse and representative judiciary? MORE testified before the U.S. Senate in what amounted to the job interview of a lifetime. Time and again, in response to what were once uniformly considered legitimate questions for a Supreme Court candidate, Barrett cited what she called the “Ginsburg rule,” albeit somewhat confusingly, “No hints, no previews, no forecasts.” When the late-Justice Ruth Bader GinsburgRuth Bader GinsburgTo infinity and beyond: What will it take to create a diverse and representative judiciary? Justice Ginsburg's parting gift? Court's ruling on Texas law doesn't threaten Roe — but Democrats' overreaction might MORE herself testified at her confirmation hearing in 1993, she did in fact weigh in on hot-button issues explicitly, including abortion, “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself,” she explained.
Whether the “Ginsburg rule” in fact should be attributed to the late justice is beside the point, however. It has become the new normal. Justice Brett KavanaughBrett Michael KavanaughRepublicans keep distance from 'Justice for J6' rally Senators denounce protest staged outside home of Justice Kavanaugh Why isn't Harris leading the charge against the Texas abortion law? MORE repeated the mantra during his testimony in 2018, noting that Justice Elena KaganElena KaganTo infinity and beyond: What will it take to create a diverse and representative judiciary? Texas, abortion and the tyranny of the shadow docket Senate panel will probe Supreme Court's Texas abortion ruling, 'shadow docket' MORE had said “No thumbs up or thumbs down when she was asked, ‘What do you think about this case?’ ‘What do you think about that case?’” During his own confirmation hearing in 2016, Justice Neil Gorsuch justified the rule this way, “I understand entirely the desire of everyone to want to know the views that I might subscribe to personally, and get me to make commitments about how I’d rule in future cases . . . . I’m not saying there’s any improper questions. There are only improper answers. As a judge, as a sitting judge, I’m bound by cano[n]s of ethics . . . They’re important to me because if — if I did make a bunch of campaign promises here, what’s that mean to the independent judiciary?”
Alito’s speech violated the Ginsburg rule. That he did it in a way that implicates public safety during a pandemic is what’s so disturbing about it. “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020,” he stated. “The COVID 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,” including a general “dominance of lawmaking by executive fiat rather than legislation.”
Alito thus took a swipe at state governors’ attempts to stave off the spread of a lethal virus that has already killed over a quarter of a million Americans and is expected to bring 22 percent of American hospitals to their knees in the coming weeks. There’s scant debate that the federal government has done little to address the pandemic. Trump hasn’t attended a COVID-19 task force meeting in over five months, instead dangling the concept of “herd immunity” since October, when he tweeted “Don’t be afraid of COVID,” upon his release from the hospital after a bout with the disease.
As Dr. Anthony FauciAnthony FauciSunday shows preview: Coronavirus dominates as country struggles with delta variant Journalist Zaid Jilani describes removal of animal rights ad that criticizes Fauci Watch live: White House COVID-19 response team holds briefing MORE recently urged, a coordinated national response to the coronavirus is needed, and Trump has the statutory authority to do it. But he has declined to invoke that power, leaving it up to the states. This is where Alito’s remarks crossed the boundaries of judicial propriety.
Alito took a Nevada law as an example, noting that it allows the governor to perform “powers and duties as are necessary to promote and secure the safety and protection of the civilian population,” and that “laws giving such an official so much discretion can of course, be abused.” So far, so good.
But he went on to weigh in on the single most important Supreme Court case to date addressing the government’s constitutional authority to take steps to protect public health, Jacobson v. Massachusetts. In that case, the court upheld a mandatory smallpox vaccine law in 1905 over the objection of a man who claimed that it violated his due process rights. Conceding that “I’m all in favor of preventing dangerous things from issuing out of Cambridge [Massachusetts] and infecting the rest of the country and the world,” Alito made a point of distinguishing Jacobson for purposes of the COVID-19 pandemic, “[I]t’s important to keep Jacobson in perspective . . . 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.”
Alito further argued that “the COVID restrictions have highlighted the movement toward rule by experts, litigation about those restrictions has pointed up emerging trends . . . with respect to religious liberty,” and that “in certain quarters, religious liberty is fast becoming a disfavored right.”
Meanwhile, President-elect Joe BidenJoe BidenSunday shows preview: Coronavirus dominates as country struggles with delta variant Did President Biden institute a vaccine mandate for only half the nation's teachers? Democrats lean into vaccine mandates ahead of midterms MORE has signaled a desire to “institute a mask mandate nationwide, starting immediately,” among other measures to combat the pandemic. Individual states are also reinvigorating efforts to restrain commingling of infected residents, through hundreds of executive orders.
Far from giving “no hints, no previews, no forecasts,” Alito clearly signaled how he’d be inclined to rule if a restriction were to reach the high court with Jacobson as the leading precedent. Some might even construe the speech as an invitation to bring constitutional challenges to COVID-19-related restrictions, particularly as they relate to religious liberty. This is troubling stuff coming from a sitting Supreme Court justice.
Alito would have done much better had he taken the occasion to speak about the legacy of the woman who publicly apologized for her own political gaffes in commenting about then-candidate Trump in 2016. Ginsburg also told listeners at a Harvard University luncheon in 2015, “Fight for the things that you care about, but do it in a way that will lead others to join you.”
Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books "How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.