As reported earlier here by my RedState colleague Bonchie, late on Friday the Supreme Court handed down an order granting the application for a preliminary injunction by a California church blocking enforcement of the order by California Governor Gavin Newsom that prohibited any indoor gathering for purposes of religious services.
The order was somewhat fractured, as there were multiple parts of the California order under review, and the Court granted the application but denied them as to others. The Justices in the majority – the six conservatives – were not unanimous in their views on each part of the order, enjoining some but allowing others to remain in place. The three liberal justices would have allowed the entire order to stand.
The components of the order that are being challenged are: 1) a ban on all indoor services; a 25% capacity limitation on indoor services that will now be allowed; and a prohibition on singing and chanting during services.
Justices Thomas and Gorsuch would have enjoined all components of the order.
Justice Alito would have enjoined the ban on indoor services and the 25% capacity limitation that will now apply.
The Chief Justice, along with Justices Kavanaugh and Barrett blocked only the prohibition on indoor services. But they will allow the 25% capacity limit that will now apply, and the prohibition on singing and chanting to remain in place.
This is not a final decision on the merits of this case. The case has been accepted by the Supreme Court for argument and decision this spring. The decision last night only concerns the extent to which the lower court decision is allowed to remain in force pending a determination of the case by the Supreme Court on the merits.
But, as Bonchie noted, this is the first order by the Court in which Justice Barrett has taken a position in writing. She wrote a short concurrence, joining in part with Justice Gorsuch who wrote the lengthiest statement in support of granting the injunction. Justice Barrett’s statement includes no profound comments – she only notes that she viewed the record as insufficient at this point to justify enjoining the ban on singing, but agreed that the Church could go back to the district court with additional evidence which might bring the issue into better focus.
But the significance of her comment, and the outcome, is that her vote demonstrates in a concrete manner to the Left that the Chief Justice is no longer the most meaningful vote on the Court. There are now five votes on the Court who cannot be relied upon to defer to executive branch “expertise” to justify governmental overreach that invades rights guaranteed by the Constitution – especially those rights that the Left has no respect for, such as religious liberty, freedom of speech and assembly, and the right to keep and bear arms.
The liberal justices are willing to roll over and allow a complete ban of a fundamental constitutional right – the ability to gather together in the “free exercise” of religion – in the subservience of government “experts.”
This adulation of “expertise” gets carried forward into other aspects of governance, and with Democrats in control of the bureaucracy, they need a Supreme Court that will not block administration efforts through regulations and rulemaking to act fast and to allow Congress to avoid taking unpopular votes.
Justice Gorsuch is an outspoken critic of the “Chevron Doctrine” which has been followed by the Supreme Court as controlling authority for nearly four decades and is now the backbone of the “authority” of the “administrative state” where the “Swamp” creatures reside.
The doctrine provides that in litigation over federal agency action, courts defer to the agency’s own interpretation of the statute unless that construction is outside the range of reasonableness. This gives the executive branch agencies and departments the primary responsibility for determining the extent of their power. When governmental action is challenged, the doctrine means the government’s view of the meaning of the statute enjoys a preference over the challenger, even in situations where the government changes views in the middle of the case because of a change in administrations.
This is exactly the kind of deference that the liberals on the Court cited in the dissent written by Justice Kagan last night:
Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services.
Those words call for worship at the feet of “experts.” They could just as easily be written in support of “climate change experts” or “domestic extremism experts,” or “wage-and-hour experts” to justify all manner of exercises of regulatory power.
Compare Justice Kagan’s language with Justice Gorsuch’s views, which are the foundation for the vote of six Justices to block the ban on indoor services:
Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to
test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard…. Even in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.
It is noteworthy that Justice Gorsuch did not limit himself in that first sentence to “religious liberty.” That is a fundamental protection afforded in the First Amendment. The broader protection of “liberty” is found in the Fifth Amendment.
The First Amendment contains what reads as a categorical prohibition on interference with “religious liberty” – “Congress shall make no law….”
The Fifth Amendment states that no person shall “be deprived of life, liberty, or property, without due process of law…”
“Government officials with experts in tow seek[ing] to infringe on constitutionally protected liberty” is something I expect we are going to see on a massive scale over the next two years.
Five Justices – maybe six at times – seem poised to potentially make themselves a “large rock in a fast-flowing stream” in that regard. There are now enough GOP-appointed judges on the various Circuit Courts of Appeal such that administration opponents can likely find judicial panels at the appeals court level who will serve as SCOTUS surrogates when the sheer number of challenges to Biden administration policy changes exceeds the ability of SCOTUS to decide every one.
As we see this reality begin to play itself out over the next 6-12 months, expect there to be more and more pressure on Democrats from the radical Left to increase the size of SCOTUS and give those seats to the Biden Administration to fill.
Those groups understand the electoral realities of 2022 and the changes to the distribution of House seats that will be in place before that election takes place. They know they will lose the majority in the House.
The period between the end of the Supreme Court’s term in June 2022, and the convening of the next Congress in January 2023, is when the pressure will be the greatest.