It’s Chief Justice (CJ) Amy Coney Barrett November 29, 2020
The late Supreme Court Justice John Paul Stevens wrote that whenever a new Justice joined SCOTUS (the Supreme Court of the United States) it became that Justice’s Court. Stevens “misunderestimated” the clout a new Justice can bring. On 10/26/2020, one week and a day before the presidential election, the GOP-controlled Senate rushed by a 52-48 vote to confirm Amy Coney Barrett to the SCOTUS bench. No Democrats voted for her, while only one GOPer voted against her. For her immediate swearing in, Coney Barrett had Supreme Ct. Justice Clarence Thomas administer her oath. If anyone had illusions about why Trump and his GOP Senate quickly put Coney Barrett on SCOTUS, her choice of Thomas said it all. Thomas, like the late Justice Antonin “Nino” Scalia believed in interpreting the law according to the text and the original meaning of the Constitution. However, unlike Thomas, Scalia stated he was less willing to overturn every precedent inconsistent with original understanding. In Scalia’s words, “I’m an originalist and a textualist, not a nut (See theatlantic.com, Rosen, J., 2/15/16).” Translation: Scalia was calling Thomas a judicial “nut.” Trump and his “Red” Senate knew that by replacing Ginsburg with Coney Barrett, SCOTUS for the next 30 years plus, would have a 6-3 or 5-4 locked in far-right conservative majority on economic and social issues. Such a judicial lineup would take our country back to the early 1930’s when the “Four Horsemen of the Apocalypse,” Justices McReynolds, Sutherland, Butler, and Van Devanter killed decent economic and social legislation until Owen Roberts (no relation to CJ John Roberts) started upholding FDR’s New Deal legislation by joining the liberal Justices. Our current CJ Roberts, though a strong economic and anti-voting rights conservative, does not want SCOTUS to be made a 1930’s laughing stock. He has, therefore, upheld Obamacare. He has tried to rule narrowly in many cases. He attempts to stay away from hot button issues like reversing local gun control laws and, so far, trying to overturn pro-choice protection for women.
We now, however, have the “Five Horsemen of the Trumpocalypse”-- Coney Barrett, Kavanaugh, Gorsuch, Alito, and Thomas. Coney Barrett has quickly become the new de-facto Chief Justice. Witness her two “turkey” decisions issued a few minutes before midnight on Wednesday 11/25/2020, just before Thanksgiving Day. In these 5-4 decisions, Coney Barrett cast the deciding votes to block for the first time a governor’s COVID-19 restrictions (nytimes.com, Liptak, 11/26/20). In those key cases, “CJ” Coney Barrett along with Gorsuch, Kavanaugh, Alito, and Thomas ruled that NY Gov. Andrew Cuomo’s attempts to control rapidly spreading infections in churches and synagogues had violated the First Amendment’s “Free Exercise” of religion clause. The Brooklyn Catholic Archdiocese and several Orthodox Jewish congregations had sued Catholic Gov. Cuomo for limiting worshippers in the most severe “red zone” of COVID-19 areas to 10 people at a time. Those in less severe “orange” zones could have up to 25 worshippers at a time. Cuomo had removed the red-zone limits after a few weeks and while this SCOTUS appeal was pending, Cuomo lifted the “orange area” restrictions (Savage, latimes.com, 11/26/20).
Under previous reasoning by Roberts, these cases would be moot. Not, however, under de-facto CJ Coney Barrett and crew. Never mind that the COVID-19 pandemic still rages and that over 260,000 Americans had died at the time of these decisions. Never mind that earlier this year, SCOTUS had turned down a San Diego, CA church’s religious-liberty challenge to the limits on indoor services set by CA Gov. Newsom and a second similar appeal from Nevada. Both of those decisions were 5-4 votes with CJ Roberts and then Ruth Bader Ginsburg in the majority. Gorsuch, Kavanaugh, Alito, and Thomas dissented (Savage, latimes.com). As Governor Cuomo stated, (with Ginsburg’s death), “You have a different court, and I think that was the statement that the court was making. We know who he (Trump) appointed to the Court. We know their ideology.” Cuomo accused SCOTUS of political partisanship (nytimes.com, 11/26/20, McKinley & Stack). Count on further challenges to restrictions of worship to prevent more superspreading of the deadly coronavirus, many of which will succeed. Never mind that Coney Barrett’s 5-4 majorities overturned the rulings of prominent public health officials and scientists. When any group makes a religious challenge to the de-facto CJ Coney Barrett SCOTUS, the power of state governments to regulate public health and employing modern science must be reversed. An extremist view of the First Amendment’s “Free Exercise” Clause, now “trumps” (pun intended) everything.
These opinions striking down Gov. Cuomo’s rational attempt to safeguard his constituents spanned 33 pages and showed a SCOTUS in turmoil. It demonstrates that the High Court, since Trump’s appointments, has deep personal ideological differences over religion. In their opinions, for all the public to see, the SCOTUS Justices engaged in bitter personal recriminations, something that institution usually tries to prevent (See cnn.com, Biskupic, 11/27/20, Liptak, nytimes.com, 11/26/20).
In the unsigned majority SCOTUS opinion, Ross Guberman, an authority on legal writing, stated, “my money was on Justice Barrett,” as the author. Her words, according to Guberman, echoed her opinions when she sat on the Seventh Circuit U.S. Court of Appeals. The unsigned opinion was mild and measured, also characteristic of Coney Barrett’s judicial work (nytimes.com, Liptak, 11/26/20). Its opinion, however, was radical. Coney Barrett could care less about previous rulings upholding public health measures. She has little respect for stare decisis, or let prior opinions stand, a key legal doctrine. She and her fellow hard-right judicial radicals now have the power to overturn precedent. “Numerus decisis,” let the numerical ideological consensus now stand. Who gets to write the opinion? When the CJ is in the minority, the most senior Justice in the majority gets to pick the author. The most senior Justice in the majority here? Coney Barrett’s new mentor, Justice Clarence Thomas.
Coney Barrett’s opinion took issue with what it said were Gov. Cuomo’s unduly “harsh” restrictions. Coney Barrett’s majority opinion stated less restrictive measures would work. According to her opinion, “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 many other activities that the state allows.” She incorrectly noted that the state had treated secular businesses more favorably than houses of worship (nytimes.com, Liptak, 11/26/20). Justice Coney Barrett ignores the fact that many churches and synagogues have far fewer than 400-1,000 seats. Many people can pack into these smaller pews for hours for services and linger for receptions. Such behavior can create a tremendous opportunity to spread COVID-19. Do we want the state guarding all these houses of worship to see that mask wearing and social distancing are enforced, really constituting improper religious/state Constitutional entanglement?
Trump SCOTUS appointee, Justice Neil Gorsuch, wrote a bitter, slashing, concurring opinion that attacked CJ Roberts. Gorsuch criticized CJ Roberts for his concurring opinion in the 5/2020 CA case. In that case, CJ Roberts’ point was that government officials, in consultation with scientific experts, were better positioned than judges to make public health determinations, a decision many courts throughout the nation relied upon. Justice Gorsuch called this CA case “worthless.” He attacked NY Gov. Cuomo for calling it “unsafe to go to church, but always fine to pick up a bottle of wine, and shop for a new bike.” Gorsuch lashed out at Cuomo for calling “laundry, liquor, and travel essential while religious exercises are not,” contrary to the First Amendment. He accused Cuomo of “secular convenience” over religion (nytimes.com, Liptak, 11/26/20, cnn.com, Sachs, J., 11/27/20). Gorsuch called the Constitution “under attack” because of Cuomo (cnn.com, Biskupic, 11/27/20). Trump appointee Justice Kavanaugh argued that even though some secular businesses like movie theaters are closed and are, therefore, treated less favorably than houses of worship, NY still had to justify why houses of worship are excluded from the “favored class” where other secular businesses are allowed to open (cnn.com, Sachs). Is Kavanaugh raising religion over everything else, making it, contrary to the First Amendment’s Establishment Clause?
Justice Alito joined Coney Barrett’s majority. On 11/12/2020, Alito told the right-wing Federalist Society judicial group, that liberals “posed a growing threat to religious liberty and free speech (Liptak, 11/13/20, nytimes.com).” Although there are few clear lines governing what Justices can say off the bench, “there is a difference between what a Justice can do and what a Justice would be well advised to do,” as Vikram Amar, the dean of the University of Illinois College of Law noted (Liptak,nytimes.com). IMHO, Alito crossed the ethical line about prejudging cases and avoiding the appearance of bias. The case overturning Gov. Cuomo’s restrictions on religious worship in light of the COVID-19 pandemic came down just less than two weeks later. This case had to have been on Alito’s mind when he addressed the Federalist Society. Alito was previously a Federalist Society member. Imagine if Justice Sotomayor, Kagan, or Breyer had addressed the American Constitutional Society, the Federalist Society’s liberal counterpart, and attacked conservatives for destroying the wall between church and state. There would have been calls in Congress for their impeachment.
In dissent, CJ Roberts correctly stated that SCOTUS should not have granted “relief under the present circumstances. There is simply no need to do so. None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic (latimes.com, Savage, 11/26/20).” In a separate dissent by Justice Sotomayor that Kagan joined, they ripped Gorsuch’s “reasoning.” Sotomayor correctly noted that Justice Gorsuch “did not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing for extended periods of time.” The dissenters noted that people going into stores and bike shops do this for far less than an hour or more at a time, unlike religious services. Sotomayor and Kagan correctly warned, “Justices of the 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.” Sotomayor and Kagan added that “epidemiologists and physicians generally agree that religious services are among the riskiest activities.” Sotomayor and Kagan noted that “NY treats houses of worship far more favorably than their secular counterparts, allowing them to open subject to capacity restrictions while closing movie theaters, concert venues, and sporting arenas entirely (cnn.com, Sachs, 11/27/20).” Sotomayor and Kagan stated the SCOTUS majority was all upset by Cuomo’s singling out houses of worship for the uptick in COVID-19. These dissenters said that when Trump repeatedly spoke of a travel ban prohibiting people from majority Muslim countries from coming to the U.S., the conservative majority had no problem upholding that ban (See cnn.com, Biskupic, 11/27/20). Pure hypocrisy.
Expect more 5-4 rulings from the High Ct.’s far right wing to keep coming down, overturning recent and prior decisions that bother them in the slightest. As I previously stated, “Numerus decisis” is the new standard. Even if we win both GA Senate seats on 1/05/2021 which will allow the Democrats to take the Senate majority, the idea of adding more SCOTUS Justices or “packing the Court” should not be attempted. Biden should use executive orders when he can to overturn reactionary SCOTUS rulings and previous Trump orders. If a SCOTUS vacancy occurs, Biden must nominate progressive members to the High Court. He must make it a priority to fill any SCOTUS vacancies and lower Federal District Courts and Federal Appeals Courts with like-minded jurists. Again, all elections, Senatorial run-offs, presidential, and midterm contests count. In 2022, we must recapture the Senate, which confirms SCOTUS and lower federal court justices. Amy Coney Barrett must not remain our de-facto Chief Justice.