A few days ago in The New SCOTUS I took a brief look at the Supreme Court's ruling on a request by Catholics and Jews in New York City for emergency injunctive relief from the threat of draconian restrictions on Free Exercise of Religion, under the pretext of public safety orders by Cuomo. What interested me at the time--and, of course, still does interest me--was the clear signaling that with the arrival of Justice Amy as a full participating justice on the Court a new conservative bloc of five justices had emerged. CJ Roberts was clearly the odd man out--likely unneeded by the five conservative justices, unable to shape their opinions with his behind the scenes string pulling.
Liberal heads have been exploding ever since. Most proximately, they see their cherished Covid lockdown powers threatened. As I also stressed, however, they must also recognize that any Trump legal challenges to the 2020 election will likely receive a sympathetic hearing, whatever the ultimate outcome.
Further, the rumblings that The New SCOTUS would be ready to take on the Left's war on Free Exercise of Religion with no-holds-barred rulings seems a clear threat on the horizon. Those anticipated rulings are likely to broadly threaten many of the Left's tools of social control. As well, a recent appellate case on the 2nd Amendment rights of non-violent felons is said to be perfectly teed up for the SCOTUS. Roberts has spent the past year or two fending off taking those cases, to the pretty much undisguised irritation of the conservative justices. Now the conservative justices will be able to pretty much dictate what cases the Court will take. And Court packing will not happen to save the day for the Left.
A notable feature of the Covid ruling was that Justice Gorsuch took the opportunity to let CJ Roberts know that he (Gorsuch) doesn't particularly like or respect Roberts. In fact, Gorsuch went out of his way to make it pretty clear that he wants Roberts--and pretty much the entire world that pays attention to Supreme Court cases--to know that. Roberts is reaping the fruit of his manipulative ways, and there's not much he can do about it for the foreseeable future.
That personal aspect is one of the aspects of this case that Shipwreckedcrew devotes quite a bit of space to in his latest article:
SWC has a dog in the Religious Liberty fight, in that he reveals that he was recently involved in a case that was very similar to the NYC case--and blames Roberts for an outcome that displeased him. Therefore he goes into a bit of detail on the merits of the case, making it quite clear that he believes Gorsuch totally has his way with Roberts. He also agrees, at the end, that the emergence of The New SCOTUS may have a decided impact on the upcoming election cases.
But SWC is at great pains to stress how intensely personal the various opinions in this case were. Like me he sees Kavanaugh as basically willing to let bygones be bygones with regard to Roberts. Where Gorsuch--probably reflecting heated Court discussions behind the scenes--drags up Roberts past bad behavior, Kavanaugh, without backing down in any way, lets the personal aspect slide. Nevertheless, as you'll see, SWC agrees with my view that Kavanaugh appears to be a fully paid up member of The New SCOTUS.
Some of SWC's writing amused me, so I thought I'd share some excerpts. SWC wrote in haste so I've taken the liberty of correcting a few typos.
After providing a brief summary of the majority opinion, which was procedural in nature, SWC continues:
But when the Justices put their names to their views, matters took a bolder turn — signaling a coming judicial “onslaught” on governmental interference with the free exercise of religion in this country.
I note at the outset that it seems meaningful — as it should be — to several justices that “Congress shall make no law … prohibiting the free exercise” of religion.
The Court has been involved for many years in a battle over the tension between this express prohibition and guarantee written into the Bill of Rights adopted at the nation’s founding, with other “discovered” rights that have “evolved” from the Court’s constitutional jurisprudence — for the most part in the last 50 years. The elevation to the Court of several “textualist” and “originalist” conservatives on the Court foretold this conflict, and the late Justice Scalia prepared the “battlefield” over which many of these fights will play out in the years to come.
The confirmation of Justice Amy Coney Barrett seemingly creates the needed “critical mass” of five Justices who are willing to express skepticism at the notion that “religions liberty” must yield to amoral non-secularism in the form of “individual liberty.”
As for the the individual opinions, Justice Gorsuch comes roaring out by taking a flamethrower to the Chief Justice — not on just one issue but on two. To me, his language borders on intemperate and likely to leave a mark on the relationship between the two. I agree with Gorsuch on the merits of his points, but I’m still a bit taken aback by the force with which he advances them here on a petition for emergency relief. There is some real “drawing a line in the sand” stuff here, and his thinly veiled expression of disdain would make have made Justice Scalia blush — and chuckle under his breath.
Actually, I think Scalia went well beyond Gorsuch in some of his shots at fellow justices.
Here's what had Gorsuch in such high dudgeon. In the previous CA cases, in which Roberts showed such great deference to the executive fiats being issued in the name of Covid, Roberts had ignored standard Court tests for dealing with such cases. Worse, in the current case Roberts tried to pretend that none of what he had done mattered--and Gorsuch was having none of that.
... in the South Bay case the Chief Justice did not apply “strict scrutiny” to reach his decision, and he was the fifth vote upholding Gov. Newsom’s restrictions on religious gatherings. He made no reference to the “standard of review” the Court should employ, and instead gave almost plenary authority to Executives such as Governors in times of public health emergencies as an exercise of “police powers”. It is no small matter that Justice Gorsuch — now with five votes on his side — referred Chief Justices’s “nonbinding and expired concurrence” as “mistaken from the start.”
As someone who has read a lot of Supreme Court cases over more than three decades, this is close to “blow torch and pliers” territory between two Justices ostensibly aligned from a jurisprudential point of view. This five-vote majority ... changes everything now pending in lower courts regarding coming challenges to lock-down orders that may be imposed by governors in the days and weeks ahead.
Do not overlook Gorsuch’s view that “shelter-in-place” orders are an “attack” on the Constitution. This is a religious liberty case, but the overt hostility of Justice Gorsuch is revealing, and I suspect it is going to extend to other burdens imposed on individual liberties by the orders.
SWC is correct, of course, that no other justice expressly joined Gorsuch's concurrence, but by the same token none of the other four conservative justices offered the slightest defense of Roberts' past rulings on these cases. Including not Kavanaugh. Kavanaugh takes an irenic approach with regard to Roberts, but is clearly in full agreement with the majority on all points.
If these things interest you, follow the link to see why SWC thinks Gorsuch wipes the floor with Roberts, for all the world to see. Make no mistake about it--bringing up the past and rubbing Roberts' nose in it shows some real bad blood. However, for our purposes, SWC's conclusion appears to me to be very much on the mark:
It is likely that the Chief and Gorsuch are going to be on opposite sides of election litigation cases that are likely to begin coming through the Court — they may already be in discussions that take place behind closed doors – and what we see here may be significant in that regard. It has been decades since a Chief Justice aligned himself with a minority block on the Court.
Either Gorsuch is very confident that the new conservative majority will hold, or he just doesn't give a rip what Roberts thinks. Or maybe both.
I do not expect that to be where Roberts ends up. I do not think he has a reliable “ally” he can pull to the “center” to create five votes by joining with the three court liberals. I do not think Justice Kavanaugh will be that vote.
That, I think is key. As I've said, Kavanaugh is willing to let bygones be bygones--unlike Gorsuch, who appears to be a score-settler. Nevertheless, as I pointed out in a number of respects in the earlier post, Kavanaugh now appears to be solidly aligned against Roberts on issue after issue that point toward future cases. Of course he may side with Roberts in some cases, but when it comes to the individual, his conscience, and the power of the State, liberty is likely to have a strong ally in Kavanaugh.
Of all the five conservative Associate Justices, Gorsuch was the one I feared might be that “swing vote” — as he proved to be in the Title VII “sex” discrimination case last term. But the language in this opinion strongly suggests that Roberts and Gorsuch are not going to be this Court’s “Kennedy and O’Connor”.
The result of all this appears to signal a diminishing of Roberts stature as Chief Justice. And perhaps that's the signal Gorsuch wanted to send to the world.