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One Vote From Wisconsin


California’s social distancing protocols currently allow religious institutions in the state to open only a 25% capacity. This makes sense — people being in close proximity for an extended period with periodic singing is extremely dangerous. Some churches filed a frivolous lawsuit alleging that this requirement violates the free exercise clause of the Constitution. Friday night the Supreme Court refused to issue an injunction — so far, so good.

But what’s disturbing as that frankly farcical arguments got four votes from the Supreme Court. In the service of history, Justice Bart O’Kavanaugh decided to reveal his entire ass to the United States Reports by filing a dissent consisting of nothing but transparently false bare assertions and non-sequiturs:

Yes, who amongst us has not gone to a bookstore, supermarket or marijuana dispensary and sat down on a crowded bench for an hour, occasionally rising to sing?

As Roberts noted in a concurrence, if you examine secular institutions that are actually relevant comparisons, any claim that religious institutions are being singled out vanishes:

And, in addition, there is an extensive tradition of deferring to the police power of the states during public health emergencies:

Congratulations to all the liberal legal luminaries who spoke on behalf of this sub-mediocre reactionary! (If Meritocracy Chua-Rubenfeld drafted the opinion someone should leak this to Jeffrey Toobin post haste.)

It’s worth noting that the three of the four dissenters here joined Koremastu II (and Kavanaugh certainly would have), finding no First Amendment violation in a case where there was extensive evidence of religious animus and the “security” considerations were a figment of Donald Trump’s imagination. My favorite part is that Alito dissented — if a case is politically salient, the Republican policy preference is his only criterion — but he refused to join Kavanaugh’s Daily Caller blog post, understanding that if you don’t have the votes to win on an application for injunctive relief it’s better to remain silent than to shove all your chips into the middle of the table with a smirk and then reveal a busted straight. Alito was always smarter.

It’s good that this came out the right way. But we’re one seat away from the Supreme Court becoming nothing but an auxiliary Republican legislature like the Wisconsin Supreme Court, and we’re already there if it’s an issue John Roberts puts a high enough priority on.

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