Chemerinsky: COVID-19 ruling reveals much about the new Supreme Court

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U.S. Supreme Court

We are accustomed to major U.S. Supreme Court decisions in late June as the term winds to a conclusion; rarely, however, is there a blockbuster ruling a few minutes before midnight the night before Thanksgiving. But the court’s ruling Nov. 25 in Roman Catholic Diocese of Brooklyn, New York v. Cuomo is quite important and tells us a great deal about the new court.

The ruling and the opinions

New York Gov. Andrew Cuomo created a detailed approach to dealing with the COVID-19 pandemic, including dividing the state into zones depending on the prevalence of the disease. These regulations specified what could be opened and at what occupancy, including for religious worship. In “red” zones, attendance at worship services is limited to 10 people, while in “orange” zones attendance is limited to 25 people.

Lawsuits were filed by the Roman Catholic Diocese of Brooklyn and by Agudath Israel of America challenging these restrictions. At the time the lawsuits were filed, these places of worship were in red or orange zones. But by the time the matter came to the Supreme Court, they were in “yellow” zones, where attendance is limited to 50% of the building’s maximum capacity. This is at least as good as the plaintiffs were requesting from the courts.

The lower federal courts upheld Gov. Cuomo’s orders as applied to these religious institutions. But the Supreme Court, in a 5-4 decision, reversed the lower courts and ruled in favor of the challengers. There was a per curiam opinion for a majority comprised of Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett; Gorsuch and Kavanaugh wrote separate concurring opinions. Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor and Stephen G. Breyer wrote dissents. Justice Elena Kagan joined both the Sotomayor and the Breyer dissents.

The per curiam opinion stressed that in red and orange zones, religious institutions are treated worse than secular businesses: “In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as ‘essential’ may admit as many people as they wish. And the list of ‘essential’ businesses includes things such as acupuncture facilities, campgrounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.”

The per curiam opinion also said that there was no evidence linking spread of the disease to these places of worship, and there were less-restrictive alternatives to limit the transmission of COVID-19. The court explained that the case was not moot, even though the religious institutions were now in the “yellow zone,” because they could be reclassified at any time. The court concluded: “But even in a pandemic, the Constitution cannot be put away and forgotten.”

This was the theme of Gorsuch’s dissent, which was much more pointed in criticizing state governors who had imposed limits on religious worship. He wrote: “Government is not free to disregard the First Amendment in times of crisis. … Yet recently, during the COVID pandemic, certain states seem to have ignored these long-settled principles.” He criticized lower courts’ and earlier Supreme Court opinions that relied on the court’s 1905 decision in Jacobson v. Massachusetts and saw it as allowing reasonable government restrictions to stop the spread of a communicable disease.

In Kavanaugh’s concurring opinion, he, too, stressed the need to protect constitutional rights in a pandemic: “But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”

Roberts, in his dissent, emphasized that the case was moot because the challengers no longer were in the red or orange zones where there were significant restrictions. He said that if they were reclassified into those zones, the court could take up the matter again quickly.

Breyer, too, argued that an injunction was unnecessary at this time and pointed to the toll of COVID-19 and the current significant increase in cases. Sotomayor’s dissent disputed that religious entities were treated differently from similar secular ones where people gather in large groups and said that, in fact, “New York treats houses of worship far more favorably than their secular comparators.”

What does it mean?

First, the decision is the first clear indication of the importance of the late Justice Ruth Bader Ginsburg having been replaced by Barrett. Twice earlier this year, the court rejected challenges by religious institutions to attendance restrictions at worship services. Both were 5-4, with Ginsburg joining Roberts, Breyer, Sotomayor and Kagan.

In South Bay United Pentecostal Church v. Newsom, on May 29, the court refused to enjoin California guidelines that limited attendance at places of worship to 25% of building capacity or a maximum of 100 attendees. Roberts wrote an opinion explaining that gatherings, including those for religious worship, are places where COVID-19 can be transmitted.

He emphasized the need for judicial deference to the decisions of politically accountable officials of the state. He said that “when those officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’” He explained that “where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Two months later, on July 24, the high court came to the same conclusion in Calvary Chapel Dayton Valley v. Sisolak, which involved an order by the Nevada governor limiting attendance at religious worship services to 50 people. The same four justices—Thomas, Alito, Gorsuch and Kavanaugh—dissented.

The difference between these cases and the Nov. 25 ruling is not about factual distinctions. It is entirely a result of the shift from Ginsburg to Barrett.

Second, the opinions reflect a profound difference between liberals and conservatives—on the court and in society—in how they view civil liberties in the context of the pandemic. The per curiam opinion and those of Gorsuch and Kavanaugh said nothing about the severity of the COVID-19 pandemic but instead emphasized the importance of protecting constitutional rights.

Two weeks earlier, in a speech to the Federalist Society, Alito said, “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” The conservative justices showed little inclination for deference to government officials who are acting to protect public health.

By contrast, each of the dissenting justices focused on the severity of the COVID-19 pandemic, and Breyer wrote: “COVID-19 has infected more than 12 million Americans and caused more than 250,000 deaths nationwide. At least 26,000 of those deaths have occurred in the state of New York, with 16,000 in New York City alone. And the number of COVID-19 cases is many times the number of deaths.

“The nation is now experiencing a second surge of infections. In New York, for example, the seven-day average of new confirmed cases per day has risen from around 700 at the end of the summer to over 4,800 last week. Nationwide, the number of new confirmed cases per day is now higher than it has ever been.” These justices urged deference to reasonable government regulations to stop the spread of a deadly disease.

Conservatives, led by President Donald Trump, have minimized the seriousness of the COVID-19 pandemic and have focused on how freedom has been unduly restricted in trying to stop its spread. Liberals, though, have emphasized the toll of the pandemic and the need to impose restrictions to limit its transmission. The rulings on Nov. 25 show that the justices are split along these same lines.

Interestingly, Roberts defies this in that he is a conservative who joined with the liberals in this case and the earlier ones this year. That reflects that no longer is Roberts the swing justice. There are five justices to his right ideologically, and that will matter enormously in the months and years ahead.

There are sure to be many more cases coming before the Supreme Court challenging various restrictions imposed to stop the transmission of COVID-19. This case may well be a precursor of a court that is much less deferential to government restrictions.


Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book is The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020)



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