Thursday, November 26, 2020


I still haven't read the Powell complaint. The reason is because I've been trying to get a handle on the SCOTUS issuance of injunctive relief against Cuomo's draconian and targeted restrictions on the Free Exercise of Religion in New York. This is a big story.

Part of the story is that the Court was evenly divided on the First Amendment issues after Ginsburg's death--with Roberts siding with the liberals against the First Amendment (I say that with a purpose). That had resulted in decisions that left anti religious freedom decisions in place in California, because of the 4-4 split. There's no split any longer with Justice Amy on the Court, and the result appears to be a solid 5-4 conservative majority that is showing a measure of solidarity in opposition to the CJ--who again sided with the liberals.

The opinion itself is somewhat complicated, in that the ruling is PER CURIAM, with no single justice listed as having written it. What everyone is talking about, however, is the way that Gorsuch, in his concurrence, appeared to go out of his way to deride Roberts specifically and the liberals generally for their cavalier attitude toward our First Amendment freedoms.

Scott Johnson quotes Politico's Josh Gerstein to provide a flavor for Gorsuch's confrontational opinion, in which Gorsuch makes clearly derogatory evaluations of the Court's--and Roberts'-- "holiday" from applying the Constitution in the CA cases:

Gorsuch appeared to skewer and diminish Roberts’ concurring opinion in the California cases that went before the court on an emergency basis in May.

“As we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms,” Gorsuch wrote. “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence … courts must resume applying the Free Exercise Clause.”

Gorsuch also accused Roberts of “a serious rewriting of history” for now insisting that his May opinion did not rely on a century-old Supreme Court precedent that allowed mandatory smallpox vaccinations in Massachusetts.

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

That's pretty strong in the hothouse of the SCOTUS. Roberts and the other liberals didn't like that at all.

Just as notable, however--for me--was Kavanaugh's concurrence. That, of course, was more or less expected, given his previous position in the CA cases. However, Kavanaugh in no way backed away from the PER CURIAM opinion, nor did he distance himself from Gorsuch specifically. The PER CURIAM opinion itself contains some very pointed language:

“Even in a pandemic, the Constitution cannot be put away and forgotten,” the unsigned opinion said.

“The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

That language is every bit as strong as Gorsuch, although not as personally directed.

Now, it's true that, as liberal prof and legal commentator Steven Mazie writes,

Meanwhile, Kavanaugh eschews Gorsuch's scare quotes, dials the rhetoric way down, clarifies that "even very strict restrictions" on attendance may be OK, and goes out of his way to explain how narrow his disagreement is with Roberts.

but it remains that 1) this decision was a decided setback for Roberts and his position as CJ, and that 2) even as Kavanaugh dialed the rhetoric down, his concurrence was firm. He rebuts Roberts at every step of the way and concludes:

I therefore see no jurisdictional or prudential barriers to issuing the injunctions now.

There also is no good reason to delay issuance of the injunctions, as I see it.

Behind that dialed down rhetoric is a pointed rejection of Roberts' dissent. Jonathan Turley, for one, characterized Kavanaugh's words as "pushback". Roberts had argued:

I would not grant injunctive relief under the present circumstances. There is simply no need to do so.

Kavanaugh clearly views the role of the SCOTUS in protecting We the People from oppressive state curtailment of our freedoms as more activist than Roberts does. That's a fundamental jurisprudential difference that I'm quite sure extends to guarding the republican form of government that all states are guaranteed.

Why is this so important and why do I think Kavanaugh's conservative views extend beyond Free Exercise? Because Kavanaugh also dissented from Roberts' laissez faire approach to the PA Supreme Court's rewriting of election law--another 4-4 pre-Justice Amy opinion. Not only did Kavanaugh dissent at that time, but in another opinion regarding the situation in Wisconsin he returned to PA case to emphasize, once again, his disagreement with Roberts. So, for all his dialed down rhetoric, this conservative solidarity may bode well for the Trump challenges. If I had to guess, I'd say that the SCOTUS will ultimately hear these cases and Trump will get a sympathetic hearing from the conservative majority.

You can read the full opinions here. For a longer and more specific commentary, Turley has written here.

ADDENDUM: I liked the combination of these two tweets:

Roberts and Gorsuch have never seemed to be the closest of pals. But the snarling tension between them has never been as evident as in their dueling Thanksgiving-eve COVID opinions.
Replying to
I think the more important news is Kav is not following Roberts on anything.


  1. Great summary Mark. I saw the news late last night about this and the Judge Roberts opinion. What a skunk he's become. His lack of a backbone is why Judge Barrett needed to be confirmed. I see many similar judgements down the road. The Senator from Kentucky's been solid these 4 years IMO.

    1. My wife, who listens to the news on the radio, tells me there has not been a SINGLE MENTION of this case.

    2. The liberal as usual give the 1st amendment short shrift.

      Rob S

  2. Yup. It's the Thomas court now.

    Remember, Folks, where you read it first:

    It'd be nice if Trump got his second term and Roberts decided to retire in a fit of pique....

  3. How refreshing to see these justices countering Roberts! The cheese now not only stands alone, but also is clearly highlighted as being tied strongly to the liberals in the court. High time. Good work, President Trump!!!!

  4. Thsnk-you again, Mark. Very informed writing, and a clear shot over the Bow to CJ Roberts.
    Very glad that both President Trump and the Senate Judicial Committee, had the fortitude to nominate Amy Cony Barrett, in a timely fashion.
    Congratulations to Neil and Brett for making 1A clear.

  5. Thinking about this further after re-reading this and other articles out there, I believe the other conservative judges are putting Roberts "on notice". When 2 or more conservative judges collude to write opinions that support their position and Roberts writes the dissenting they are basically saying "we're aiming for you if you don't start to fall in line".

    I like it.

  6. In my humble opinion Mitch McConnell is the real hero. First, for denying leftist Obama the opportunity to insert liberal Merrick Garland and then for pushing ahead with Wonder Woman Amy Coney Barrett.

    1. Yeah, on that score, Mitch is looking good.

    2. I understand entirely why people have problems with Mitch, but you just can't deny the positive and very tangible benefits his work on judicial appointments has brought. It's politics. There are always trade offs, and when it comes to Mitch what he has done with the judiciary is incredible. Quality as well as quantity.

    3. I am one of those who has problems with him, but on this issue you are 100% correct. He gets an A+ on judicial appointments.

  7. The Kevin Brown tweet is the real deal.

  8. It's encouraging that not only do we have a 5-4 Court, but we're seeing pushback against Roberts. Now we just need to prevail on Trump's reelection and so that he can make another appointment to the SCOTUS.