In case you had any about whether the Fuller Court 2.3 would show any restraint at all, Sam Alito delivered what at least in terms of its text was a hyper-partisan culture war stemwinder at the Federalist Society. (He sounded awful, though, like he was in an ISIS hostage video; Republicans are nothing if not sore winners.) There are actually multiple terrifying things about it that each merit discussion, but the most immediate one was his clear signal that the Court is about to emulate the crackpot judges in Wisconsin and Michigan and start throwing out COVID regulations:
In the short term, the most disturbing part of Alito’s speech were his remarks about the government’s response to the Covid-19 pandemic. Speaking on a day in which more than 160,000 Americans contracted the deadly virus and hospitals in many states are straining from overcapacity, Alito remarkably suggested that the government response has been too draconian, asserting that the Covid-19 response highlighted a “disturbing trend” of policies implemented by the executive branch based on — God forbid — “scientific expertise.”
That is a view already expressed in two judicial dissents, which held that Covid-19 orders that cover churches as well as other indoor gatherings violate the First Amendment. And, most disturbingly, Alito also suggested that the Supreme Court’s landmark 1905 decision Jacobson v. Massachusetts, which upheld a mandatory smallpox vaccination law during a pandemic, should be read narrowly — i.e., that it might not apply to the circumstances of today’s pandemic.
Whether states and municipalities have the right to impose requirements on individual citizens to protect the public health is not merely an abstract question today. Hyperpartisan Republican courts in Michigan and Wisconsin have struck down popular Covid-19-related executive orders issued by Democratic governors that weren’t laws passed by Republican legislatures. When Alito suggests that the courts should restrict the ability of “experts” in the executive branch to implement policy, what he really means is that responsible governors are likely to find their ability to deal with an escalating pandemic hamstrung by the Supreme Court.
It’s worth adding a couple things here as the Court prepares to get to the right of the Court that decided Lochner v. NY. The first is that the voters of those states have no recourse because Republicans have gerrymandered the legislatures to guarantee themselves majorities regardless of the will of the people, and what executive power the undemocratic legislature can’t take away hack judges are willing to. (Alito, needless to say, joined the disgraceful party-line 5-4 Supreme Court opinion upholding the denial of democratic government to the citizens of these states.) Anyway, it’s just awesome that as a deadly pandemic rages completely out of control our already inadequate reform measures are about to be second-guessed by lawyers who think “scientific expertise” is a pejorative.
The second thing worth noting here is that there’s no legal principles at all involved here. Just as Alito prepares to restrict the ability of the executive branch to take emergency measures during a very real public safety crisis, he thinks the Court owes essentially unlimited deference to President Trump when he wants to do racisms in response to a completely imaginary security threat. The only animating theory of Alito’s jurisprudence is “heads Republicans win, tails the Democrat Party loses,” and with a 6-3 majority in place Alito — who used to be very good at disguising his partisanship — has stopped even trying to maintain plausible deniability.
There’s plenty more here — embracing the Sarah Palin First Amendment! Criticizing Washington’s Plan B policy although he has no idea how it even works! Treating the organization that is given unilateral power over federal judicial appointments as a persecuted minority! But we’ll come back to that. It’s all terrifying as hell.