Paul has already noted the latest example of Neil Gorsuch fitting seamlessly into Antonin Scalia’s role of being the Supreme Court justice with the largest gap between his intelligence and his self-perception of his own intelligence. The only thing that can be said in defense of his remarkably specious analysis (I don’t know about you but personally I don’t recall lingering in a liquor store for an hour in close static proximity with other people, occasionally pausing to break into song) is that way too many elites across the political spectrum have let their COVID response be dictated by moral intuition rather than epidemiological risk.
There are a couple of other remarkable things about the Court’s understandably unsigned majority opinion that are worth noting:
And just to make the bad faith clear we have three members of the Korematsu II majority and two who almost certainly would have joined it suddenly concluding that the statements of public officials ARE material to determining whether a policy is discriminatory pic.twitter.com/hcBWZHfZQC— Scott Lemieux (@LemieuxLGM) November 26, 2020
It seems like it should be fatal to a religious discrimination claim when religious institutions are singled out to be given more favorable treatment than comparable secular ones but for the COVID Barrett Court “will it own the libs?” is plenty good enough.
And the bad faith of the majority citing Cuomo’s anodyne statements about outbreaks in Orthodox communities has to be outright trolling. The current position of the Roberts Court is that simple factual statements by a public official are evidence of discrimination that justifies second-guessing executive actions during a historic public health crisis, but a repeated pattern of material and flagrantly racist comments by a public official must be ignored to defer to executive actions allegedly being taken in response to a completely imaginary security threat. The juristocracy!
Anyway, the current position of the Court’s Republican majority is that the Fuller Court was insufficiently reactionary. Being governed by a minoritarian death cult turns out to be very bad. As Justice Sotomayor concludes:
Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives. Because New York’s COVID– 19 restrictions do just that, I respectfully dissent.