It wasn’t just religious liberty that Chief Justice Roberts strangled
The big story is even bigger than it appears to be at first blush.
Close to midnight on Friday, while rioters used the killing of George Floyd as a pretext to set America aflame, the U.S. Supreme Court issued a 5-4 ruling that declined to enjoin the states of California and Illinois from restrictions on communal worship imposed due to the coronavirus pandemic.
Most startling was that Chief Justice John Roberts not only joined the court’s four left-leaning justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan) in declining to uphold religious liberty. Roberts also wrote a brief opinion explaining his decision.
That opinion is an eye-opener. Roberts accords the right to worship no deference by virtue of its being a fundamental liberty expressly protected by the First Amendment. We are to see it as an activity like any other activity, commercial or social, the pros and cons of which technocrats must weigh in fashioning regulations. The opinion, moreover, champions the power of government officials to dictate to the people who elect them without “second-guessing by an unelected federal judiciary” — exactly the power that the Bill of Rights, and the incorporation jurisprudence by which the court has applied much of it to the states, are meant to deny.
This is truly remarkable because it is so gratuitous.
As Amy Howe explains at Scotusblog, both states had asked the justices to stay their hands because the cases were essentially moot. That is, the restrictions that worshipers in Southern California and Chicago were protesting either had been superseded by less stifling (though still objectionable) regulations or were about to be lifted (albeit without a guarantee that objectionable regs would not then be imposed). The Supreme Court could have summarily declined to issue an injunction, with no further comment and without prejudice to the right of churches and members of their congregations to challenge any new restrictions. Between the fact that the cases were not ripe for resolution, and the fact that the Supreme Court rarely issues injunctions (as opposed to stays that merely suspend matters temporarily), the justices simply could have sidestepped this one. That approach would have been consistent with the court’s usual and prudent reluctance to rule on weighty constitutional questions unless it is truly necessary.
So knowing there was no need to do this, Roberts willfully waded into the maelstrom. Why would he do that?
It is inconceivable that the chief justice does not know the Trump Department of Justice (DOJ) has mobilized in defense of civil liberties. At first, DOJ’s Civil Rights Division intervened in religious liberty cases. It has enjoyed success in pressuring municipalities to relax some offensive restrictions, principally contending that governments run afoul of the First Amendment when they discriminate against free-exercise rights — subjecting houses of worship to more adhesive conditions than are applied to commercial and other activities.
Since then, DOJ has begun expanding its push into the realm of economic regulation. This is a tougher row to hoe for federal authorities because states are supreme in regulating intrastate commerce. Governors get a wide berth so long as they avoid discriminating against constitutionally protected interests or activities. Attorney General William Barr, nevertheless, has argued that protecting individual liberty is a constitutional imperative. Thus, the DOJ has admonished against burden shifting, theorizing that it is not an American’s burden to prove that his or her job is “essential.” Instead, it is the state’s burden to show that a job — a person’s livelihood — cannot be performed reasonably safely in the absence of the restrictions the state chooses to impose.
Just yesterday, the Justice Department filed a statement of interest supporting a lawsuit by Michigan businesses that claim Democratic Gov. Gretchen Whitmer’s restrictions are “arbitrary and irrational.” In announcing the action, Civil Rights Division chief Eric Dreiband proclaimed, “The Constitution permits appropriate state and local government restrictions to protect the health and safety of Americans, but it does not permit arbitrary limits that limit the right of all people in our country to be treated equally and fairly by the government.”
Chief Justice Roberts’s Friday night opinion appears to put a harpoon in that anti-discrimination theory.
In rejecting the religious liberty claim, Roberts counters that it is not a matter of unlawful discrimination if different things are regulated in different ways. Religious gatherings, he rationalized, are being restricted like gatherings that are physically similar, such as lectures, concerts, theater productions and spectator sports. He conceded that less intense restrictions have been imposed on other activities, such as shopping, banking and laundering. But that, he insists, is because of salient differences in the way they are conducted: small groups, no extended proximity, and so on.
But wait a second. What about the constitutional pedigree of religious exercise? That was the point pressed by Justice Brett Kavanaugh, in a brief dissent joined by Justices Clarence Thomas and Neil Gorsuch. (Justice Samuel Alito also opposed the denial of First Amendment relief but did not join Kavanaugh’s dissenting opinion.)
Moreover, what about our fundamental right to property, our need to work and our obligation to take care of our dependents? Not the court’s job, Roberts says:
“Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. … When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. 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.” [Citations and internal quotations omitted.]
The Justice Department may think the economy-crashing restrictions imposed by blue-state governors are irrational. By the chief justice’s lights, though, it “seems quite improbable” that the Supreme Court would find unconstitutional the actions of state and local officials wrestling with “a novel severe acute respiratory illness” which has “killed … more 100,000 people nationwide,” and as to which “there is no known cure, no effective treatment, and no vaccine.”
There is no recognition, in Roberts’ rendering, that there is another side to this equation — a side where 400 times the number of people who’ve died have lost their jobs, millions of them facing ruin. The stubborn message: Don’t expect the court to help you, you’re the ones who elected these people; if you don’t like what they do, un-elect them. If you’ve elected social engineers who say the Bill of Rights is above their pay grade, that’s your problem.
The justices are happy to order that abortion must be available, to decide which couples (or perhaps throuples) must be permitted to marry, and to dictate what’s ever next in the ceaseless march of progressive, organic “liberty.” But as for the liberties that are actually in the Constitution, we are on our own.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.