Yesterday’s remarkable temporary injunction against NY Governor Andrew Cuomo makes plain Amy Coney Barrett’s influence on the newly constituted Supreme Court. One appointment ago, the outcome would have been otherwise. And although the case is plausibly symbolic as it temporarily enjoins a classification no longer in force, the symbolism's timing is disturbing. It was issued the day before the major US holiday that health experts had warned pose a unique threat in the ascent of COVID’s second wave. Rather than reinforcing the seriousness of it all, the Court conveys the greater threat is imagined constitutional violations.
The six resulting opinions address Governor Cuomo’s scheme classifying geographical zones as red, orange, and yellow, from the most the most restrictive to increasingly lax. Red zones affected religious institutions identified as such, restricting their indoor gatherings to ten persons, with orange raising the number to 25. Those restrictions are more relaxed than for some secular gatherings, most notably theaters, yet stricter than for businesses deemed essential, including grocery stores, liquor stories, and acupunturists.
The controlling opinion was per curiam (speaking for the Court, but actually five members, with four in dissent). Justices Gorsuch and Kavanaugh also concurred separately, and Chief Justice Roberts and Justices Breyer and Sotomayor wrote dissenting opinions. This post is a bit long because, although I found a bit of time to write it up on Thanksgiving morning, the holiday prevents a tighter distillation.
The per curiam (Thomas, Alito, Gorsuch, Kavanaugh, Barrett):
This opinion focuses on likelihood of success on the merits and the claimed irreparable harm, weighed against the public interest. A major judicial hurdle involved the Governor’s reclassification, days prior to the ruling, which affected the very institutions bringing suit, from red to orange and orange to yellow. This invokes mootness, a doctrine limiting the capacity to raise stale claims. The per curiam makes quick work of that, and observes that should the Court stay its own hand, the NY Governor might soon reinstate his more restrictive color coding. This response rests on one of two mootness exceptions, first, capable of repetition yet evading view, which the Court famously applied in Roe v. Wade (1973), and which, not surprisingly, isn't cited, and second, voluntary cessation of offending activity that may be resumed.
The second exception, at issue here, implicates a cat-and-mouse game. When the cat retreats, the mouse comes out, but the cat can reemerge at any time, forcing the mouse back into hiding, that is, until the cat retreats again. Legally, this game risks preventing the underlying threat from ever being adjudicated. In this instance, however, facing the extraordinary nature of the requested relief, in a pandemic that has already taken the lives of more than 250,000 Americans, a differently composed majority—with RBG, not Barrett—would almost certainly have exercised restraint, especially given the rapidly changing conditions on the ground. As one example, by the time of a complete merits ruling, we might witness the distribution of a vaccine.
The tension is revealed in this passage, which the per curiam honored in the breach:
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.” (slip op at 5).
Justice Gorsuch, concurring:
Gorsuch begins “Government is not free to disregard the First Amendment in times of crisis,” (slip op at 1), then continues:
“And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?” (Slip op at 2).
Gorsuch criticizes Chief Justice Roberts’s concurrence in an earlier pandemic-related temporary injunction suit for having relied upon the Supreme Court’s 1905 decision, Jacobson v. MA, which sustained the Massachusetts requirement of a smallpox vaccine on threat of a fine. Gorsuch goes so far as to conceive what appears to be a new order-of-citation rule. Apparently, according to Gorsuch, the order in which cases are cited in an opinion implies their relative status of authority, or, as Gorsuch explains, listing Jacobson first implies “towering authority that overshadows the Constitution during a pandemic” (slip op at 5). Roberts points out the frank absurdity of it all, including that his condemned citation to Jacobson was in support of this innocuous sentence:
“[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ ” South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring) (quoting Jacobson, 197 U. S., at 38). (Roberts, CJ, slip op at 2-3).
Gorsuch then focuses on the central question: Why not just wait? His ironic answer evokes hubris:
“But none of us are rabbis wondering whether future services will be disrupted as the High Holy Days were, or priests preparing for Christmas. Nor may we discount the burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services.” (Slip op at 7).
So are we to imagine that suspended Jewish High Holiday Services were a mistake? It’s true that the sitting Justices aren’t rabbis or priests, but they also aren’t public health officials trying to save thousands upon thousands of lives, and even greater numbers from the potential lifelong consequences of an illness that, even today, we know remarkably little about.
Kavanaugh, J., concurring:
Kavanaugh claims that it isn’t sufficient to show that some secular businesses—theaters—are treated less well than places of worship. Instead, it’s essential that the state justify treating places of worship less well than those businesses that are favored as essential.
Justice Sotomayor answer this in a way that, on a differently constituted Court, would almost certainly have carried the day. The nature of religious gatherings—extended indoor time singing and speaking at loud volume—distinguishes them from ever other activity the per curiam and concurrences rely upon to claim unlawful discrimination against religious observance. The question must not end by observing that the regulation distinguishes religious observances from other activities. It should start there. It should then, applying strict scrutiny, inquire whether there is a compelling reason to draw the distinction, and assuming there is, whether the chosen means are narrowly tailored. And in the context of the COVID pandemic, the answer to both questions should be a resounding yes. And more to the point, in the world of rapidly—day to day, even hour to hour—changing conditions in a pandemic, narrow tailoring must allow enough slack to let public health officials off the hook even if they if they ever so slightly misjudge in their efforts to save lives.
Kavanaugh further invokes comparisons to other states that have imposed less restrictive impositions on religious practice during the pandemic. This too is troublesome. Typically it has been the judicial conservatives who emphasize deferring to matters of local expertise. There might well be strong reasons to imagine that Ultra-Orthodox Jewish communities in Brooklyn, NY are prone to conduct that justifies rendering them subject to more restrictive regulations—and to be clear, ones that as this very case shows had been lifted as the local data changed—as compared with religious communities in other parts of the country.
Roberts, CJ, dissenting:
Roberts, unlike the other dissenters, agrees that there’s a possible, perhaps even likely, First Amendment violation, but he would await reimposition of the more restrictive orders rather than now grant a temporary injunction.
In addition to pointing out the overreaction the Jacobson quote, including claiming that order of citation matters one whit, Chief Justice Roberts takes this jab at Justice Gorsuch:
“To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution."
Although I think commentators sometimes overstate Chief Justice Roberts's institutionalist commitment, it is nonetheless nice to see his willingness to defend his liberal colleagues against Justice Gorsuch’s overreaching attack.
Breyer, J, dissenting:
Breyer points out the extraordinary nature of the relief sought and that the most challenging restrictions had already been lifted. He points to data concerning the challenging impossible choices Governor Cuomo and health officials faced in their efforts to stave off greater rates of infection, which have been especially acute among certain religious communities in New York City. In normal times, and with a different Court, this one passage would have sufficed to ensure a contrary outcome:
“At the same time, members of the scientific and medical communities tell us that the virus is transmitted from person to person through respiratory droplets produced when a person or group of people talk, sing, cough, or breathe near each other. . . . Thus, according to experts, the risk of transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces.” (slip op at 4)
“The elected branches of state and national governments can marshal scientific expertise and craft specific policies in response to “changing facts on the ground.” Id., at 3. And they can do so more quickly than can courts. That is particularly true of a court, such as this Court, which does not conduct evidentiary hearings. It is true even more so where, as here, the need for action is immediate, the information likely limited, the making of exceptions difficult, and the disease-related circumstances rapidly changing.” (slip op at 5)
Simply put, what happens in church and synagogue is different—markedly and relevantly so—from what happens in bike shops, liquor stores, and the other businesses treated differently.
Sotomayor, J, dissenting:
To me, this passage might well be the most significant of all:
“But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time. . . . Unlike religious services, which “have every one of th[ose] risk factors,” . . . bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. Id., at 7 (“Epidemiologists and physicians generally agree that religious services are among the riskiest activities”). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
At one level, I agree with Justice Gorsuch’s implicit assertion that this is a case about hubris. The Justices are not priests or rabbis. But nor are they governors or health officials. A wiser Supreme Court would have stayed out by staying its hand, allowing politically accountable actors to figure out which set of leaders in the midst of a pandemic truly warrant special pleading.
I welcome your comments, and, more than anything, I hope you and your loved ones stay safe this Thanksgiving.