TRUMP'S LONG SHADOW, What to take from the courts "Diocese of Brooklyn" decision

 

Near midnight on the 25th of November the Supreme Court issued a temporary order granting relief to the Roman Catholic Diocese of Brooklyn and a Jewish organization named Agudath Israel of America. The decision exempted them from some COVID-19 restrictions New York Governor Cuomo imposed earlier in the month. This vote was significant because it seemed to overturn two previous decisions concerning COVID restrictions in California and Nevada. It’s also noteworthy because it was the first important vote by recently confirmed Justice Amy Coney Barrett. The resulting hyperbole in news headlines went into meltdown mode. Some declared this decision represents the new right-wing, anti-science majority that will destroy civil liberty protections while others hailed the decision restoring a conservative majority that will protect traditional values. Where you get your news was the main factor in which version of reality you were likely to see.

It’s been said that the truth is the first casualty of war. This seems to be no less true in the war for the future of the Supreme Court. So, if the headlines are more concerned with clicks than reality, what did this decision actually do? Perhaps even more important, what does it say about the new direction of the court? First, this wasn’t a full decision, but rather this was a temporary injunction against enforcement of a specific rule. The rule limited attendance at religious services to 10 people in code red COVID zones, and 25 in orange zones. Even though only a temporary injunction, it signals the court believes it’s likely they will ultimately prevail in the case.

Importantly, the church and synagogue involved in this case are no longer in a high risk COVID zone. This means they are no longer under these emergency restrictions. So, for all the hand wringing, nothing on the ground actually changed as a result of this decision. It’s also not accurate that this ruling overturned the earlier COVID restrictions the court upheld. Those earlier decisions involved less restrictive rules, so they aren’t directly comparable. The court didn’t rule that the plaintiffs aren’t subject to any COVID restricts, only these specific restrictions. In fact, these organizations are still subject to a mask mandate and less restrictive limits on attendance. Also in a less reported case, the court refused to help a Louisiana preacher facing charges for ignoring church attendance limits. Clearly this was not a refutation of all COVID restrictions on churches.

So, what exactly was the plaintiff’s case for blocking these restrictions? Even though the court decided this case along conservative/liberal lines both sides presented some compelling reasoning. The lawyers made the case that these extreme restrictions did not apply to businesses in these areas. In the red zones essential businesses are still allowed to operate without restricting the number of patrons. There were also questions about why some seemingly non-essential activities like acupuncture were designated as essential but houses of worship were not. In orange zones the restrictions are even looser for businesses. Bike shops were an example of a business that could operate in orange zones while churches continued to face severe restrictions. It was the singling out of houses of worship that was the determining factor in their decision. This decision indicated that churches shouldn’t be subject to more severe pandemic restrictions than other neighboring businesses.

Some noted that the limit of 10 or 25 people seemed arbitrary because it didn’t take into account the capacity of the venue. A church that holds a thousand people had the same ten-person limit as a church with a hundred-person capacity. The lawyers for the state weren’t able to justify the limit based on any science. Even as an atheist liberal it seemed to me they had a legitimate point. I start getting antsy when the government starts limiting First Amendment rights.

Having said that, the state also made legitimate points in their defense of the restrictions. Contrasting the rules for churches to retail outlets wasn’t an apt comparison. From a communicable disease standpoint, a church is a lot more like a movie theater or concert venue. The state pointed out that religious services have less restrictive rules than these similar gatherings. They also pointed out that the severe restrictions were only being used as a last resort. The fact the state had already removed these restrictions shows they are using them as sparingly as possible. The circumstances of this case were a lot less clear cut than many in the media made it out to be.

So, can we glean nothing about the direction of the court from this case? The thing that stood out most to me was how eager Justice Gorsuch was to shoot down the restrictions. Also, his fellow Trump appointee Justice Kavanaugh seemed much more restrained in his concurring opinion. From what I can gather this is keeping with their previous decisions. Both have been less dogmatically conservative than some on the right had hoped. Gorsuch seems to see himself as the reincarnation of Justice Scalia, whom he replaced. Like in this case, he seems to revel in writing folksy combative decisions. Kavanaugh, on the other hand, has often opposed Gorsuch and tends to write much more restrained and concise decisions.

Conservatives love complaining about activist liberal judges. Sensitive to this criticism the court often avoids making decisions to overturn laws when they can. In this case, since the restrictions in question were already removed by the state it seemed like an easy case to punt on. That’s exactly the position Chief Justice Roberts took. However, led by Gorsuch, the conservative majority was willing to strike down a policy instituted by an elected official even when the decision had no practical effect. This could be viewed as a new conservative activist tendency by the majority. Clearly that’s how Gorsuch intended it. Justice Thomas didn’t write an opinion in this case, he has likewise indicated a willingness to play fast and loose with precedent in the past.

Having said all that, that is old news. Those dynamics were already in place before this decision. The question everyone wants to know is how does Justice Barrett play into this. It’s probably safe to speculate that if Justice Ginsberg were still alive this decision would have gone the other way. I don’t, however, think we can read too much into this decision. Of course, the court will be more conservative with Barrett than it was than Ginsburg. Gorsuch and Kavanaugh have both shown an independent streak at times, occasionally voting with the court’s liberals. To what extent Barrett will buck conservative expectations is impossible to determine from this case. Bottom line, this wasn’t the disastrous decision some on the left are making it out to be, and likely doesn’t portend a new era of evangelical court decisions. It’ll likely take several years before we can truly get a sense of what Trump’s legacy on the Supreme Court will be.