Supreme Court Associate Justice Samuel Alito told Fox News that pandemic responses “stress tested” Americans’ constitutional rights—and revealed that some were treated as secondary. The interview with Fox News Sunday host Shannon Bream coincides with the planned Oct. 6 release of his book, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.”
Alito’s view: a ‘stress test’ that downgraded key rights
“I think it was a stress test of our constitutional rights,” Alito said in the Fox News interview, adding, “It put our loyalty to those constitutional rights, our dedication to those constitutional rights, to the test.” He said the period “disclosed” that many were “willing to downgrade certain constitutional rights: the right to freedom of speech and the right to the free exercise of religion,” making them “secondary to other things.”
What he said in 2020—and the backlash
Bream asked about Alito’s Nov. 12, 2020, virtual speech to the Federalist Society. There, Alito said pandemic restrictions led to “previously unimaginable restrictions on individual liberty.” He also said he was not diminishing the virus’s threat or judging whether policies were good public policy. He called it “an indisputable statement of fact” that the country had “never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020,” and described the episode as a “constitutional stress test.” According to the source material, critics accused Alito of being too partisan in those remarks.
The Nevada example: casinos open, churches capped
Bream referenced Calvary Chapel Dayton Valley v. Steve Sisolak, in which the Supreme Court voted 5–4 to deny an emergency injunction request by the church. The church argued that then–Nevada Gov. Steve Sisolak’s 50-person cap on worship services violated the free exercise of religion. “My primary purpose is to keep people alive and stop the spread of this disease,” Sisolak said at an April 2020 press conference, according to the Reno Gazette Journal.
Alito dissented. He pointed to what he viewed as disparate treatment that allowed secular businesses—such as casinos, restaurants, and gyms—to operate at 50% of fire-code capacity while houses of worship faced strict numerical caps. “The example of the casinos, I thought, was telling,” Alito said in the Fox interview. He added that the governor “said the casinos are open,” that “people came back to Las Vegas,” and there were “pictures of people in the casinos” who “were not wearing masks,” while worship attendance was tightly limited “no matter how big that house of worship was.”
Alito’s comments aired on Fox News Sunday with Shannon Bream, in the lead-up to the Oct. 6 book release.
