Barrett’s vote in NY case exposes rift on high court
New justice may play a prominent role in close rulings to come
WASHINGTON — A few minutes before midnight Wednesday, the nation got its first glimpse of how profoundly President Donald Trump had transformed 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. But the arrival of Justice Amy Coney Barrett late last month, which put a staunch conservative in the seat formerly held by Justice Ruth Bader Ginsburg,the liberal mainstay, meant that it was only 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, spanning 33 pages and opening a window on a court in turmoil.
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 was almost certainly 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 will almost certainly play a decisive role. Her support for claims of religious freedom, a subject of questioning at her confirmation hearings and a theme in her appellate decisions, will almost certainly play a prominent role.
Democrats had feared, and Trump had predicted, that Barrett’s vote might be crucial in a case arising from the Nov. 3 election. But there is no case on the docket or on the horizon that has a potential to alter the outcome.
It is not clear how Barrett will vote in the latest challenge to the Affordable Care Act, which was argued this month.
Roberts is fundamentally conservative, and his liberal votes have been rare. But they reinforced his frequent statements that the court is not a political body. The court’s new and solid conservative majority may send a different message.
That said, the court’s dynamics can be complicated, and not all decisions break along predictable 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 may turn out to be an occasional ally.
On Wednesday, Kavanaugh issued a conciliatory concurring opinion emphasizing that 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, however, enough to decide the case.
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 v. 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.”