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Thu Nov 26, 2020, 03:01 PM

Midnight Ruling Exposes Rifts at a Supreme Court Transformed by Trump.

The justices issued six opinions, several of them unusually bitter, in upholding challenges from churches and synagogues to state pandemic restrictions on religious services.

'A few minutes before midnight on Wednesday, the nation got its first glimpse of how profoundly President Trump had transformed the Supreme Court.

Just months ago, Chief Justice John G. Roberts Jr. 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 the liberal mainstay, Justice Ruth Bader Ginsburg, meant that it was only a matter of time before the chief justice’s leadership would be tested.

On Wednesday, Justice Barrett dealt the chief justice a body blow. She cast the decisive vote in a 5-to-4 ruling that rejected restrictions on religious services in New York imposed by Gov. Andrew M. 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 on 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 Justice Ginsburg’s death in September. Those decisions upheld restrictions on church services by 5-to-4 votes, with Chief Justice Roberts in the majority. . .

The ruling issued late Wednesday night said that Mr. Cuomo’s strict virus restrictions — 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. . .

The majority opinion said less restrictive measures would work.

“Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue,” the opinion said. “It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the state allows.”

The opinion said the state had treated secular businesses more favorably than houses of worship. . .

The most notable signed opinion came from Justice Neil M. Gorsuch, Mr. Trump’s first appointee. His concurrence was bitter, slashing and triumphant, and it took aim at Chief Justice 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. . .

“We may not shelter in place when the Constitution is under attack,” Justice Gorsuch wrote. “Things never go well when we do.”

Chief Justice Roberts responded, in a tone suggesting that his patience was being tested, that there was no need to act because Mr. 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 not necessary, 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. Chief Justice Roberts made a point of defending his colleagues from Justice Gorsuch’s attacks, saying they were operating in good faith.

“To be clear,” the chief justice wrote, quoting from Justice 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.”>>>



Cuomo Attacks Supreme Court’s Emboldened Majority Over Virus Ruling.

“You have a different court, and I think that was the statement the court was making,” the governor said after a 5-4 decision barring restrictions on religious services.

Gov. Andrew M. Cuomo accused the U.S. Supreme Court of political partisanship on Thursday after the justices narrowly rejected his coronavirus-based restrictions on religious services. He played down the impact of the ruling, suggesting that it was a reflection of the court’s emboldened new conservative majority.

Regardless of the governor’s interpretation, the decision by the Supreme Court late on Wednesday to suspend the 10- and 25-person capacity limitations on churches and other houses of worship in New York would seem to be a sharp rebuke to Mr. Cuomo, who had previously won a series of legal battles over his emergency powers.

“You have a different court, and I think that was the statement that the court was making,” the governor said, noting worries in some quarters after President Trump nominated three conservative justices on the Supreme Court in the past four years. “We know who he appointed to the court. We know their ideology.”

Mr. Cuomo, a third-term Democrat, insisted that the 5-4 decision “doesn’t have any practical effect” because the restrictions on religious services in Brooklyn, as well as similar ones in Queens and the city’s northern suburbs, had since been eased after the positive test rates in those areas had declined.

But less stringent capacity restrictions, also rejected by the Supreme Court’s decision, are still in place in six other counties, including in Staten Island.'>>>


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Response to elleng (Original post)

Thu Nov 26, 2020, 03:39 PM

1. They'd look at it differently if it wasn't hypothetical and hundreds of thousands were really dying.

Oh. Yeah. Right.

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Response to elleng (Original post)

Thu Nov 26, 2020, 07:46 PM

2. But her e-mails

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Response to elleng (Original post)

Thu Nov 26, 2020, 08:04 PM

3. Am I wrong to think the Supreme Court just

Last edited Thu Nov 26, 2020, 08:39 PM - Edit history (1)

established precedent for contesting any “one size fits all” regulation by a governing jurisdiction? That’s basically the argument presented by the majority, you cannot regulate without accounting for the different circumstances that might arise.

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Response to KPN (Reply #3)

Thu Nov 26, 2020, 08:08 PM

4. Will think about it.

Can you pick up a quote to that effect?

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Response to elleng (Reply #4)

Thu Nov 26, 2020, 08:48 PM

6. Not an attorney so I don't have any citation handy.

I just know that there are probably thousands of regulations that stipulate a standard that must be met without regard for differing circumstances. Some States’ building codes are an example, e.g., insulation values that must be met. Regulations/orders are always simplified to some degree and at some level just for the sake of administrative efficiency. The same is true for the private sector with sops and policy. This ruling is a prejudiced ruling based on an agenda. I just wonder whether one of its consequences might’ve unleashing challenges to many regulations based on the notion that one size does not fit all circumstances. That seems to be one of the backbones in their argument.

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Response to KPN (Reply #6)

Thu Nov 26, 2020, 08:53 PM

7. I thought you saw something in the article(s), that brought the question up.

I don't think this decision raised 'new' issues, re: reviewing regulations.

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Response to elleng (Reply #7)

Thu Nov 26, 2020, 09:38 PM

8. It didn't. It relied on an argument that basically was

it is overly burdensome to stipulate a standard that doesn’t provide for exceptions in order to accommodate circumstances where the stipulated standard may not be necessary. That seemed to be the foundational argument.

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Response to KPN (Reply #3)

Fri Nov 27, 2020, 08:26 AM

9. I'd say yes... that's wrong

The issue here isn't any "one size fits all" policy. It's such a policy when there are fundamental rights being restricted - which really isn't new. What's new is their application of an existing balancing test.

Governments can impinge upon constitutional rights in certain circumstances where the governmental interest is substantial enough (the classic example is "can't yell 'fire!' in a crowded theater" ). When courts evaluate individual rights against governmental interests (effectively group rights) they apply a balancing test weighing those competing interests. The more fundamental a given right is, the stricter the "scrutiny" that the court applies in evaluating a government action that restricts that right.

In the case of something as fundamental as the free exercise of religion, the courts apply a "strict scrutiny" standard. Which means that the action must meet a "compelling governmental interest"

Up until that point, it's likely that all nine justices agree. They likely also all agree that NY's interest here is compelling (public health). The disagreement (apart from whether the ruling is needed at this time at all) is in the third leg of the strict scrutiny test: the policy must be the least restrictive way of achieving the goal... with a little disagreement over the second leg (that it must be narrowly tailored to achieve that interest.).

For instance - NY has some really large churches. St. Patrick's can reportedly hold 3,000 people in a single service. Limiting them to 10 or 25 people at a time is arguably not the "least restrictive" when they could put several times that number in a service without risking anyone's health. If Cuomo said that churches in red zones were limited to 10% of capacity... then it would have been harder to make this ruling.

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Response to FBaggins (Reply #9)

Fri Nov 27, 2020, 12:03 PM

10. Ah, thanks for that explanation. The ruling doesn't seem so radical in

that light. Though it is still somewhat subjective.

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Response to KPN (Reply #10)

Fri Nov 27, 2020, 12:23 PM

11. Not so "radical", but significant in at least one respect

"Judicial restraint" is the notion that courts should avoid making rulings that don't have to be made (either by ruling narrowly on just the question that needs answering and not broadening the ruling out or by not ruling at all if it isn't absolutely necessary). Accurate or not, this has been Roberts' reputation. He could keep the other four conservatives from going too far afield by voting with the liberals if necessary (or - more commonly - by picking who wrote the opinion and only concurring in the decision).

This ruling is the first one that makes clear that he's losing that influence with Barrett on the court.

So you're right. It isn't so "radical". Though many here on DU disagree with the ruling, it would probably have been 7-2 on the merits if the case were properly before them with the policy still in force. But that doesn't mean that it isn't significant. Pre-Barrett they would have avoided ruling at all unless/until Cuomo decided to reimplement the restriction.

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Response to elleng (Original post)

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