Today Margot Cleveland reviews the SCOTUS decision on Free Exercise of religion in Tandon v. Newsom. Yesterday we discussed Shipwreckedcrew's views on the case. SWC noted the emergence of what seems to be a solid five vote majority on the SCOTUS that
1) favors a robust application of the Free Exercise clause and
2) has run out of patience with CJ Roberts' go-slow approach.
I concluded by expressing the hope that the Tandon decision signals a shift in basic attitudes on the part of the SCOTUS with regard to conflicts between guaranteed constitutional rights and state regulation:
To speculate a bit on equally broad issues, I wonder whether this get tough approach when it comes to the First Amendment v. State regulation may presage an openness to reexamining the entire notion of judicial deference to the supposed "expertise" of the administrative state. We know that Gorsuch's views on that subject--and I believe the same applies to Justice Amy--were key to his nomination. In point of fact, all three of the other justices in the majority--Thomas, Alito, and Kavanaugh--seem open to that reexamination to one degree or another. That would be major good news.
You can find Cleveland's fine discussion of the case here:
The court’s unsigned order in Tandon v. Newsom signifies the reemergence of religious liberty as a valued jurisprudential principle to the Supreme Court.
Of particular interest is Cleveland's final section: "These Principles Could Extend A Lot Farther." In this section Cleveland contrasts previous SCOTUS Free Exercise decisions that relied on the RFRA (Religious Freedom Restoration Act) with the current decision--which is based solidly on the US Constitution. This is a big difference. Cleveland confines her discussion to religious freedom issues, but--as she says--These Principles Could Extend A Lot Farther. The principle I have in mind, as I stated yesterday, is subjecting government regulations to strict scrutiny any time they affect basic constitutional principles--such as rights that are enumerated in the Constitution. The importance of this is that it would strike a blow against the very central concept of the Progressive agenda--rule by "experts".
While Cleveland does confine herself to religious freedom in this article, she unquestionably understands the broader dynamics of this decision--as do liberal legal types. Thus, in her concluding paragraphs, she writes: