For conservative justices, faith in 'religious freedom' trumps public health

For conservative justices, faith in 'religious freedom' trumps public health
© Greg Nash

The Supreme Court and the U.S. Constitution are not synonymous. At times the public may fail to distinguish between the two, yet it is not too much to expect that the Justices themselves recognize the distinction. 

Late on the eve of Thanksgiving, our most recent justices — Barrett, Gorsuch, and Kavanaugh — joined Justices Thomas and Alito to issue an emergency injunction against a New York public health rule, which in fact was no longer operative.

After considering the evidence, federal district and court of appeals judges had rejected the religious freedom claim by the Roman Catholic Diocese of Brooklyn and Agudath Israel, an Orthodox Jewish group. The religious groups had challenged New York’s substantial limits on the number of people allowed to worship together, but the lower courts had emphasized the dangers of spreading the pandemic during worship, as pointed out by public health experts. Nonetheless, the 5-4 Supreme Court majority hastened to intervene without full briefs or oral argument.


While Justice Ginsburg was still alive, the Court had twice rejected similar religious claims. It was primarily on the basis of those precedents that Chief Justice Roberts joined the dissenters, citing the Court’s longstanding deference to public health concerns.

The Court’s Thanksgiving decision received considerable praise, particularly for Justice Gorsuch’s memorable pithy phrases in his concurring opinion. Justice Gorsuch proclaimed: “Even if the Constitution has taken a holiday during this pandemic, it cannot be a sabbatical.” And the Court’s majority perceived such an immediate threat to the Constitution that they refused to await the outcome of a normal Court of Appeals argument, scheduled for Dec. 18.

In the course of Justice Gorsuch’s unusually personal attack on Chief Justice Roberts, he declared that the Court itself “may not shelter in place when the Constitution is under attack.” He then added a sweeping historical observation: “Things never go well when we do.”

Things also often have not gone well, however, when the Court claimed to be defending the Constitution.

There were, for example, the Court’s notorious decisions upholding imprisonment for statements against American entry into World War I, as well as those that upheld Japanese internment during World War II. Further, numerous opinions accepted and further justified  structural racism over many years.


To be fair, New York Gov. Andrew CuomoAndrew CuomoArkansas, New Jersey governors to head National Governors Association Foo Fighters, Dave Chapelle cover 'Creep' at first MSG show since pandemic Katie Hill says 'it would take a lot' to convince her to run again for House MORE’s COVID-19 order drew lines that could be easily mocked: the need to pick up a bottle of wine or to buy a bicycle on the one hand; the need to pray together with co-religionists on the other. Justice Gorsuch was delighted to emphasize such contrasts to justify judicial activism. Yet, as Justice Sotomayor noted in her dissent: “Justice Gorsuch does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.”

During the current devastating pandemic, many Americans have loudly challenged public health mandates, declaring that they interfere directly with unspecified constitutional rights. Fortunately, however, most of the public most of the time defers to the Court to make constitutional judgments.

The Court just today demonstrated the broad reach of its Thanksgiving decision when it reversed a Tenth Circuit decision that had allowed the Colorado governor to restrict the number of worshippers in a church because of the pandemic. As Justice Kagan’s dissent points out today, the Colorado restriction was no longer in effect, and thus the case clearly seemed moot, yet the Court nonetheless intervened to send the case back to the lower courts, as it did with a similar case from New Jersey.

There are many reasons for general acceptance of Supreme Court decisions. In part this deference is a matter of the Court’s deliberative process: before deciding a case, the justices take the time to review the record established in the lower courts, to read the parties’ briefs, and to ask questions during oral argument. And then usually the justices explain in their own words — perhaps with a little help from their law clerks — why they decided as they did.

This deliberative process may look like a holiday or a sabbatical to some. It is deeply concerning, however, if our newest justices are in a rush to proclaim that the Constitution speaks directly to or through them.

Rather than making facile statements in a rush to judgment — perhaps at the cost of lives in the context of a pandemic — the Justices, and the country, would benefit from the Court’s own version of “deliberate speed.” Indeed, it might be best if the Court were in fact to take a sabbatical. After all, the Justices were in effect forced to do just that when President Thomas Jefferson and his congressional allies simply cancelled the Court’s 1802 Term. That was the prelude to Chief Justice John Marshall’s landmark decision that clearly established judicial review, anchored in the Constitution, in Marbury v. Madison.

Aviam Soifer served 17 years as Dean of the William S. Richardson School of Law at the University of Hawai’i. He has been writing and teaching about constitutional law and legal history for over 40 years, often focusing on the post-Civil War period.