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