Sur­prise: Jus­tice Ka­vanaugh sides with Pritzker over Illi­nois GOP or­ga­ni­za­tions in COVID-19 crowd re­stric­tion case

Chicago Sun-Times - - TOP NEWS - lsweet@sun­times.com LYNN SWEET D.C. DECODER | @lynnsweet

The Supreme Court al­ways has a jus­tice on duty for emer­gen­cies, and on Satur­day — In­de­pen­dence Day — Jus­tice Brett Ka­vanaugh, a Trump ap­pointee, was on the job.

And on July 4, Ka­vanaugh did some­thing that might sur­prise you, given his con­ser­va­tive and GOP cre­den­tials, his days in the Ge­orge W. Bush White House and the Demo­cratic-led fight over his con­fir­ma­tion.

Ka­vanaugh sided with Demo­cratic Gov.

J.B. Pritzker.

He de­nied an emer­gency bid by sev­eral al­lied Illi­nois Repub­li­can or­ga­ni­za­tions to block Pritzker’s COVID-19 pan­demic re­lated ban on po­lit­i­cal events with more than 50 peo­ple.

The rush for a tem­po­rary re­strain­ing or­der and pre­lim­i­nary in­junc­tion in this case was pegged — so went the ar­gu­ment — to the ur­gent need to clear the le­gal way for a July 4 pic­nic and fire­works to rally the Will County GOP faith­ful — at a farm, a place with plenty of room for peo­ple to spread out. That pic­nic an­gle is now moot.

This case is an off­shoot of a larger move­ment, spurred on by Trump, to chal­lenge pub­lic health rec­om­men­da­tions — even from his own ad­min­is­tra­tion med­i­cal ex­perts — when it comes to pre­vent­ing

COVID-19 spread.

Down­play­ing dan­gers, Trump in­sisted on large in-per­son events Fri­day, at Mount Rush­more, and Satur­day at a July 4 cel­e­bra­tion on the Na­tional Mall. Trump also moved most of the Au­gust GOP nom­i­nat­ing con­ven­tion from North Carolina to Jack­sonville, Florida, to avoid mask or so­cial dis­tanc­ing man­dates.

Let me back up a bit.

On Fri­day, July 2, U.S. Dis­trict Court Judge Sarah El­lis, a nom­i­nee of Demo­cratic ex-Pres­i­dent Barack Obama, handed a de­feat to the Illi­nois Repub­li­can Party; Will County Repub­li­can Cen­tral Com­mit­tee; Schaum­burg Town­ship Repub­li­can Or­ga­ni­za­tion, and the North­west Side GOP Club. She de­nied their re­quest for an emer­gency tem­po­rary or­der that would have al­lowed for a large gath­er­ing.

One of the GOP ar­gu­ments was that large Black Lives Mat­ter protests are tak­ing place, so given the First Amend­ment, the party events should also be al­lowed. In­deed, Pritzker was present at one march. With­out go­ing down that com­par­a­tive road, El­lis wrote in her opin­ion that the COVID-19 pub­lic health risks “are too great” for a large gath­er­ing.

The GOP or­ga­ni­za­tions quickly ap­pealed for a fa­vor­able emer­gency rul­ing from a three-judge panel on the 7th Cir­cuit Court of Ap­peals.

On July 3, the judges — Diane Wood, tapped for the bench by Demo­cratic ex-Pres­i­dent Bill Clin­ton; Joel Flaum, an ap­pointee of for­mer Repub­li­can Pres­i­dent Ger­ald Ford; and Amy Bar­rett, tapped by Trump (and who is on Trump’s list of po­ten­tial Supreme Court jus­tices) — signed an or­der deny­ing the emer­gency chal­lenge.

“If 100 Democrats or 100 Repub­li­cans gather and ten get in­fected, those ten may go home and in­fect a lo­cal shop­keeper, a lo­cal gro­cery-store worker, their postal car­rier, or their grand­mother—some­one who had no in­ter­est in the ear­lier gath­er­ing. Thus, the bal­ance of harms in this in­stance strongly fa­vors the gov­er­nor,” the three judges con­cluded.

The Illi­nois GOP or­ga­ni­za­tions are rep­re­sented in this fight by the Lib­erty Jus­tice Cen­ter, the Loop law firm de­voted to con­ser­va­tive and GOP causes. The cen­ter was a key le­gal player in the land­mark Illi­nois case over manda­tory union fees paid by many state of Illi­nois work­ers — Mark Janus vs. AFSCME Coun­cil 31 — win­ning a big Supreme Court vic­tory.

On July 4, the Lib­erty lawyers, Daniel Suhr and Jef­frey Sch­wab, filed an emer­gency ap­pli­ca­tion for an in­junc­tion with Ka­vanaugh.

They told Ka­vanaugh in their brief, the ques­tion is, “Does the Gov­er­nor of Illi­nois, who per­mits gath­er­ings of 50 or more for re­li­gious speech or cer­tain pro­tes­tors’ speech (a Black Lives Mat­ters ref­er­ence) vi­o­late the First Amend­ment by pro­hibit­ing such gath­er­ings for po­lit­i­cal par­ties’ speech?”

These Repub­li­can groups told Ka­vanaugh they want to do law­ful in-per­son events with more than 50 peo­ple — ral­lies, fundrais­ers, etc., in the run-up to the Novem­ber pres­i­den­tial elec­tion, and “they would ob­serve ap­pro­pri­ate safety pre­cau­tions.”

All we know from the file is that Ka­vanaugh — with no com­ment — de­nied the ap­pli­ca­tion from the Illi­nois GOP groups. Kris­ten Wil­liamson, a Lib­erty Jus­tice Cen­ter spokes­woman, said the next step is to pur­sue a 7th Cir­cuit ap­peal. And in the mean­time, Trump is head­lin­ing an­other big in-per­son rally, next Satur­day at the Portsmouth, New Hamp­shire, air­port.

Supreme Court Jus­tice Brett Ka­vanaugh (left) sides with Illi­nois Demo­cratic Gov. J.B. Pritzker in a COVID-19 crowd re­stric­tion case brought by Illi­nois Repub­li­cans.

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