At three minutes before midnight last night, a new Supreme Court emerged: a 5-4 majority with the most conservative Justices clearly in control. For the first time, the newest Justice, Amy Coney Barrett, cast the deciding fifth vote to make a majority.
In 33 pages of judicial writing, some of it quite ill-tempered, the ruling blocked New York Governor Andrew Cuomo from enforcing tight restrictions on religious gatherings during the pandemic – even though the governor, in the meantime, had relaxed those restrictions.
The broader significance came from these aspects of the ruling:
* The ruling came in the field of religious freedom, an arena of intense constitutional combat across the nation on the role of faith in public life and policy. That combat is the most prominent feature of today’s culture wars.
* The 5-4 lineup marked the first time that the five most conservative Justices held control, leaving Chief Justice John G. Roberts, Jr., in dissent and accusing the majority of over-using its power.
* A quite unpleasant exchange emerged between the Chief Justice and one of his conservative colleagues, Justice Neal M. Gorsuch, suggesting what could become a continuing rift.
* The majority used its strongest judicial weapon that usually demands the most strenuous justification – an injunction, and not just a temporary restraint – to overturn the action of Governor Cuomo even though what was at issue is no longer in effect.
* The majority showed a conspicuous willingness to second-guess how a policymaking government official – here, the governor – decided what was necessary for public safety amidst a global and worsening health crisis.
* The ruling had heightened significance because it was based on the Constitution, and not on a specific federal law. It represented an expansion of the First Amendment’s guarantee of religious freedom, using the strictest standard for judging challenges to government action.
* The Court took the highly unusual step of releasing the opinions and order in the middle of the night, when there was no clear deadline for it to be issued, reflecting the urgency with which the majority, at least, viewed the dispute.
The Court issued a seven-page, unsigned order preventing New York from putting back into effect a limit of 10 people in any religious gathering in a “red zone” of the most severe outbreak of covid-19 in New York City and a limit of 25 people in such gatherings in the city’s less-impacted “orange” zone. The order will remain in operation a lower federal appeals court holds a hearing next month and decides on the constitutionality of the restrictions.
The ruling came in response to pleas from Roman Catholic and Orthodox Jewish congregations that had been located in the red or orange zones, but since have been located in “yellow” zones where they may have up to 50 percent of their building capacity for worshippers.
Five of the nine Justices wrote separate opinions, ranging from three to seven pages in length, and expressing sharply conflicting views of the controversy and its meaning.
The only Justices who did not write their own opinions or join others’ opinions were new Justice Barrett and Justices Samuel A. Alito, Jr., and Clarence Thomas. But because the order required a minimum of five Justices, those three were in the majority along with Justice Gorsuch and Justice Brett M. Kavanaugh.
Gorsuch wrote a sometimes sarcastic, sometimes bitterly worded seven-page opinion, accusing the dissenters of “another sacrifice of fundamental rights in the name of judicial modesty” and blaming the Chief Justice for an earlier opinion on religious worship limits during the pandemic for misusing past precedents and switching positions – which produced a tart, three-page response from the Chief Justice.
The Chief Justice’s opinion, signed only by him, defended his three dissenting colleagues – Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor – from Gorsuch’s criticisms, and making the Chief’s argument that the Court needed to do nothing at all at this point since the Cuomo restrictions had ended days earlier. The other dissenters took the same position.
The separate opinions written by Justices Kavanaugh as part of the majority and Justice Breyer as part of the dissenting group were noticeably more moderate in tone, simply disagreeing about the necessity of the Court to act at this point.
Justice Sotomayor’s five-page opinion used the occasion to point out that a Court majority was willing to second-guess Governor Cuomo while a majority had been willing two years ago to accept President Trump’s reasons for imposing a flat ban on immigration of Muslims.
The outpouring of opinions reinforced the widespread expectation that the control of the Court had shifted sharply to the Right with the addition of the three Justices named by President Trump: Gorsuch, Kavanaugh and Barrett. With those three combining with two Justices who probably rank as the most conservative among the whole Court, Alito and Thomas, it appeared that Chief Justice Roberts may have lost some of the power he had had before Barrett was added to the Court replacing the late Justice Ruth Bader Ginsburg.
It is clear that issues of religious freedom have so far sparked the deepest division within the current nine Justices, but it is not clear just how or whether that will spread to other controversial areas of the Court’s work. The current term of the Court, though, will provide significant opportunities to test that proposition.
With the release last night of the religious freedom ruling, the most pressing issue the Justices have before them, in terms of the need to act on emergency appeals, is how the Court will deal with the last attempts by President Trump’s lawyers to overturn the presidential vote in Pennsylvania. That could produce sharp divisions, it seems likely.
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