It’s a different Supreme Court now
Midnight ruling in church case sheds light on transformation under Trump
WASHINGTON— Afewminutes before midnight Wednesday, the nation got its first glimpse of how profoundly President Donald Trump had changed the Supreme Court.
Just months ago, Chief Justice John Roberts was at the peak of his power, holding the controlling vote in closely divided cases and almost never finding himself in dissent.
However, the arrival of Justice Amy Coney Barrett late last month, which put a staunch conservative in the seat formerly held by liberal mainstay Ruth Bader Ginsburg, meant it only was a matter of time before the chief justice’s leadership would be tested.
On Wednesday, Barrett dealt the chief justice a body blow.
She cast the decisive vote in a 5-4 ruling that rejected restrictions on religious services in New York imposed by Gov. Andrew Cuomo to combat the coronavirus, shoving the chief justice into dissent with the court’s three remaining liberals.
It was one of six opinions the court issued Wednesday.
The ruling was at odds with earlier ones in cases from California and Nevada issued before Ginsburg’s death in September.
Those decisions upheld restrictions on church services by 5-4 votes, with Roberts in the majority.
The New York decision said that Cuomo’s strict virus limits — capping attendance at religious services at 10 people in “red zones” where risk was highest, and at 25 in slightly less dangerous “orange zones” — violated the First Amendment’s protection of the free exercise of religion.
Wednesday’s ruling could be a taste of things to come.
While Ginsburg was alive, Roberts voted with the court’s fourmember liberal wing in cases striking down a restrictive Louisiana abortion law, blocking a
Trump administration initiative that would have rolled back protections for young immigrants known as “Dreamers,” refusing to allow a question on citizenship to be added to the census and saving the Affordable Care Act.
Had Barrett rather than Ginsburg been on the court when those cases were decided, the results might well have flipped.
In coming cases, too, Barrett could play a decisive role.
That said, the court’s dynamics can be complicated, and not all decisions break along predict
able lines.
For instance, while Roberts has lost his place at the court’s ideological center, Justice Brett Kavanaugh, who was the second of Trump’s three court appointments, values consensus and might turn out to be an occasional ally of the liberals.
On Wednesday, Kavanaugh issued a conciliatory concurring opinion emphasizing he agreed with much of what Roberts had written in dissent.
“I part ways with the chief justice,” he wrote, “on a narrow procedural point.” That point — whether the court should act immediately, notwithstanding Cuomo’s decision to lift the challenged restrictions for the time being — was enough to decide the case.
The majority opinion was unsigned, but Ross Guberman, an authority on legal writing and author of “Point Taken: How to Write Like the World’s Best Judges,” said he suspected its principal author was the newest justice.
“My money is on Justice Barrett,” Guberman said, pointing to word choices that echoed her opinions on the 7th U.S. Circuit Court of Appeals.
Among them, he said, was “the concession that justices ‘are not public health experts.’ ”
The opinion said the state had treated secular businesses more favorably than houses of worship.
“The list of ‘essential’ businesses includes things such as acupuncture facilities, campgrounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities,” the opinion said.
The most notable signed opinion came from Justice Neil Gorsuch, Trump’s first appointee.
His concurrence was bitter, slashing and triumphant, and it took aim at Roberts, whose concurring opinion in the California case in May had been relied on by courts around the nation to assess the constitutionality of restrictions prompted by the pandemic.
The chief justice’s basic point was that government officials, in consultation with scientific experts, were better positioned than judges to make determinations about public health.
But Gorsuch wrote that the opinion, in South Bay Pentecostal Church vs. Newsom, was worthless.
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” he wrote. “Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause. Today, a majority of the court makes this plain.”
“We may not shelter in place when the Constitution is under attack,” Gorsuch wrote. “Things never go well when we do.”
Roberts responded that there was no need to act because Cuomo had, for the time being, lifted the restrictions.
“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” he wrote. “And it may well be that such restrictions violate the Free Exercise Clause. It is notnecessary, however, for us to rule on that serious and difficult question at this time.”
The court’s three liberal members were to varying degrees prepared to support the restrictions.
Roberts made a point of defending his colleagues from Gorsuch’s attacks, saying they were operating in good faith.
“To be clear,” the chief justice wrote, quoting from Gorsuch’s concurring opinion, “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 ‘sheltering in place when the Constitution is under attack.’ They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
In a separate dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was being reckless.
“Justices of this court play a deadly game,” she wrote, “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.”