Justice John Roberts has lost control of the Supreme Court
- With Justice Amy Coney Barrett anchoring a new, arch-conservative majority of justices, Chief Justice John Roberts is no longer the one in power.
- In the first major public act of Donald Trump's Supreme Court, the majority ruled against New York attendance restrictions to religious services to limit the spread of COVID-19.
- Barrett's arrival in the seat held by Ruth Bader Ginsburg means the chief's vote is no longer necessary if conservatives are seeking expansive rulings in the cultural and social issues that matter to them.
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When the Supreme Court of the United States decides something in the middle of the night, there is often a true emergency: a prisoner on death row may be seeking mercy before his execution, or a law or executive order that's about to go into effect threatens real harm to a litigant.
But a few minutes before midnight on Wednesday, five justices on the nation's highest court, facing no emergency other than perhaps their own Thanksgiving plans, handed down a ruling in a pair of New York cases where the conflict between religion and government efforts to curb the spread of Covid-19 came to a head. Four justices were in dissent, and all of them were of the mind that there was no real need to intervene.
Except this was not your usual, 5-to-4 ruling — with four conservatives, four liberals, and one moderate justice settling the score, and the terms of the decision, in either direction — such as when Justice Anthony Kennedy would sometimes side with liberals to provide greater protections for gays and lesbians, and the rest of the time with conservatives on issues near and dear to them, such as religion and the Second Amendment.
No, this was the first major public act of Donald Trump's Supreme Court, one in which his three appointees — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — joined up with two of the more conservative members, Clarence Thomas and Samuel Alito, to form a new arch-conservative coalition.
And this coalition spoke loud and clear that Gov. Andrew Cuomo of New York ran afoul of the First Amendment's right to the free exercise of religion when he issued an executive order that set up "red" and "orange" zones that restricted attendance to religious services to 10 and 25 congregants, respectively, depending on the severity of community spread, as determined by health officials. The Roman Catholic Diocese of Brooklyn and Agudath Israel of America, an orthodox Jewish community, had separately challenged the order in federal court.
"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," the justices wrote in an unsigned, seven-page opinion. "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."
If overall that opinion's tone was measured, there was enough tension behind the scenes to prompt five justices to go public with their own separate opinions, both agreeing and disagreeing with the majority.
In this new group of five, Chief Justice John Roberts is no longer chief — by title he may be, but he's no longer the one in control. If Kavanaugh's ascent in 2018 rendered Roberts the most powerful chief justice since John Marshall, and a check on Trump and Republicans' perceived extremism, Barrett's arrival in the seat held by Ruth Bader Ginsburg means the chief's vote is no longer necessary if conservatives are seeking expansive rulings in all the cultural and social issues that matter to them — be it abortion, gun rights, or the clash between religion and LGBTQ rights, all issues the Supreme Court is now or will soon be confronting. His voice and vote are greatly diminished.
And by virtue of the pandemic's politicization, and legal challenges associated with it, that means that Roberts' influence won't carry the day as it has since April, when the Supreme Court rendered what would become the first in a string of rulings determining the extent to which health and safety regulations, or the lack thereof, may infringe on the rights of voters, the rights of prisoners, and the rights of worshippers.
In all of these areas, at least until this week, Roberts was firmly in the driver's seat. In May, Roberts was the deciding vote, alongside the court's more liberal members, to uphold California Gov. Gavin Newsom's decision to place certain numerical restrictions at public gatherings, including at houses of worship, to address the pandemic.
In August, Roberts swung the other way: he joined his conservative colleagues in siding with local officials at a California jail who were under a judge's order to protect inmates by observing social-distancing guidelines, testing, and adequate cleaning protocols.
For Roberts, the constant theme has been deference to state health authorities. "Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect," he wrote in May.
That language must have stayed with Gorsuch, who dissented at the time. In a rejoinder in the New York case on Wednesday, he resurfaced Roberts' rationale and called his earlier words "nonbinding and expired" — more or less signaling to lower courts, and the nation, that it's a new day at the Supreme Court. "Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical," Gorsuch wrote. Elsewhere, he accused Roberts of "cutting the Constitution loose during a pandemic," and he and the liberal justices of succumbing to "a particular judicial impulse to stay out of the way in times of crisis" and "shelter[ing] in place when the Constitution is under attack."
In a fulminating passage that has since gone viral, Justice Sonia Sotomayor illuminated the stakes when judges purport to know better than the experts. "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," she wrote in a dissenting opinion, joined by Justice Elena Kagan.
Of course, it's the majority opinion that matters, and Roberts will no longer be able to counsel prudence in the face of what Justice Stephen Breyer, another dissenter, called "rapidly changing circumstances." Cuomo and other governors must now think twice before imposing health and safety guidelines that even remotely reach places of worship.
Hours before the Supreme Court's late-night ruling on Wednesday, and with cases spiking around the nation, a federal judge in Kentucky offered a glimpse of what future religious challenges to Covid measures the justices may bless. Citing the First Amendment's religious-freedom clause, U.S. District Judge Gregory Van Tatenhove blocked part of Gov. Andy Beshear's order halting in-person classes at all private and public schools in the state.
"If social distancing is good enough for offices, colleges, and universities within the Commonwealth, it is good enough for religious private K-12 schools that benefit from constitutional protection," the judge wrote in his ruling. "Ultimately, '[t]he First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'" Religious schools, in other words, get preferential treatment no other school gets.
Micah Schwartzman, a law professor at the University of Virginia who studies the intersection of law and religion and has criticized the Kentucky ruling, said in an interview that the Supreme Court has now given a green light to more of these decisions — which in turn will make it harder for state and local governments to regulate efficiently. The New York ruling "is going to encourage a wave of litigation challenging state public health regulations and give a lot of energy to religious groups that think they're feeling constrained by local rules," he said.
Other areas may as well see aggressive judicial interventionism. Litigants may soon feel emboldened to challenge everything from statewide mask mandates to stay-at-home orders to efforts to get everyone vaccinated. The federal government and the states have long claimed legal authority to advance public health measures, even more so when a deadly virus is running rampant.
But will this authority resist a newly reconfigured Supreme Court that sees state rules as encroachment on people's liberties? Justice Samuel Alito, speaking during a conservative lawyers' convention earlier this month, more or less made plain how he feels about this wave of regulations. "We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020," Alito said. "The Covid crisis has served as a sort of constitutional stress test and in doing so, it has highlighted disturbing trends that were already present before the virus struck," he added.
The New York governor, who dismissed the Supreme Court's latest edict as irrelevant because the congregations that sued had seen their restrictions eased, noted the new political reality at the high court — and the imprint Trump has left in it. "You have a different court, and I think that was the statement that the court was making," Cuomo said on Thursday, in response to the ruling. "We know who he appointed to the court. We know their ideology."
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