Justice Amy Coney Barrett's Choice by Linda Greenhouse
Will she join the Supreme Court’s grievance conservatives?
'Justice Amy Coney Barrett had a choice.
She could provide the fifth vote on the Supreme Court that Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh needed — and would not have received from the Justice Ruth Bader Ginsburg — to place a temporary block, in the name of religious freedom, on New York’s pandemic-driven limitations on church and synagogue attendance.
Or she could give that precious fifth vote to Chief Justice John Roberts in the name not only of public health but also of judicial modesty, since the most severe restrictions the Catholic and Jewish organizations were complaining about were no longer in effect and the whole case might well disappear into thin air if the Supreme Court simply stayed its hand.
History will record the choice Justice Barrett made in the court’s Nov. 25 decision as the first moment of fruition for the hopes and fears engendered by her abrupt election-eve ascension to the Supreme Court following Justice Ginsburg’s death in September. Until then, Chief Justice Roberts had held the line in favor of public health in similar cases from California and Nevada, each by 5 to 4 votes. Now he was left in dissent, joined by the remaining members of his former majority, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Barrett, who did not express her opinion in writing, was a silent member of the new majority.
I’d like to think this was a tough choice for her, but in the end, this case may simply disappear. The Roman Catholic Diocese of Brooklyn, along with an Orthodox Jewish organization, was appealing the decision of a Federal District Court judge not to enjoin the state from enforcing attendance limits at worship services. That’s when the Supreme Court stepped in, at the request of the diocese, and issued the injunction itself, pending the appeal to a federal appeals court in New York, which will hear the case in two weeks. Maybe then the case will end up back at the Supreme Court on the merits, but most likely, it won’t, because the governor eased the restrictions while the case was pending in the court.
The real significance of the decision lay in the which-side-are-you-on test it posed for the newest justice. I don’t mean the conservative side versus the liberal side. Obviously, she’s a conservative. What matters is that a month into her tenure, she chose to align herself with what I call grievance conservatism: conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.
The embodiment of grievance conservatism is Justice Alito, who in a speech last month to his fellow members of the Federalist Society said that “it pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”>>>
https://www.nytimes.com/2020/12/03/opinion/amy-coney-barrett-supreme-court-religion.html?
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