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Midnight ruling exposes rifts at a Supreme Court transformed by Trump

New York has eased many of its restrictions as positive COVID-19 test rates declined.James Estrin/NYT

WASHINGTON — A few minutes before midnight Wednesday, the nation got its first glimpse of how profoundly President Donald Trump had transformed the Supreme Court.

Just months ago, Chief Justice John Roberts was at the peak of his power, holding the controlling vote in closely divided cases and almost never finding himself in dissent. But the arrival of Justice Amy Coney Barrett late last month, which put a staunch conservative in the seat formerly held by the liberal mainstay, Justice Ruth Bader Ginsburg, meant that it was only a matter of time before the chief justice’s leadership would be tested.

On Wednesday, Barrett dealt the chief justice a body blow. She cast the decisive vote in a 5-4 ruling that rejected restrictions on religious services in New York imposed by Gov. Andrew Cuomo to combat the coronavirus, shoving the chief justice into dissent with the court’s three remaining liberals. It was one of six opinions the court issued Wednesday, spanning 33 pages and opening a window on a court in turmoil.

The ruling was at odds with earlier ones in cases from California and Nevada issued before Ginsburg’s death in September. Those decisions upheld restrictions on church services by 5-4 votes, with Roberts in the majority.


Wednesday’s ruling was almost certainly a taste of things to come. While Ginsburg was alive, Roberts voted with the court’s four-member liberal wing in cases striking down a restrictive Louisiana abortion law, blocking a Trump administration initiative that would have rolled back protections for young immigrants known as “Dreamers,” refusing to allow a question on citizenship to be added to the census and saving the Affordable Care Act.

Had Barrett rather than Ginsburg been on the court when those cases were decided, the results might well have flipped. In coming cases, too, Barrett will almost certainly play a decisive role. Her support for claims of religious freedom, a subject of questioning at her confirmation hearings and a theme in her appellate decisions, will almost certainly play a prominent role.


Democrats had feared, and Trump had predicted, that Barrett’s vote might be crucial in a case arising from the presidential election. But there is no case on the court’s docket or on the horizon that has a realistic potential to alter the outcome.

It is not clear how Barrett will vote in the latest challenge to the Affordable Care Act, which was argued this month. But, judging from the questioning, the act is quite likely to survive however she votes.

Roberts is fundamentally conservative, and his liberal votes were rare. But they reinforced his frequent statements that the court is not a political body. The court’s new and solid conservative majority may send a different message.

The ruling issued late Wednesday night said that Cuomo’s strict virus restrictions — capping attendance at religious services at 10 people in “red zones” where risk was highest, and at 25 in slightly less dangerous “orange zones” — violated the First Amendment’s protection of the free exercise of religion.

The majority opinion was unsigned, but Ross Guberman, an authority on legal writing and author of “Point Taken: How to Write Like the World’s Best Judges,” said he suspected that its principal author was the newest justice.

“My money is on Justice Barrett,” Guberman said, pointing to word choices that echoed her opinions on the 7th U.S. Circuit Court of Appeals. Among them, he said, was “the concession that justices ‘are not public health experts,’” and “the taste for ‘And,’ ‘But,’ and ‘show.’”


The unsigned opinion was mild and measured, which is also characteristic of Barrett’s judicial work. It took issue with what it said were Cuomo’s unduly harsh restrictions, which had been challenged by, among others, the Roman Catholic Diocese of Brooklyn and two synagogues, the latter of which had argued that Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”

The majority opinion said less restrictive measures would work.

“Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue,” the opinion said. “It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the state allows.”

The opinion said the state had treated secular businesses more favorably than houses of worship.

“The list of ‘essential’ businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities,” the opinion said.

The most notable signed opinion came from Justice Neil Gorsuch, Trump’s first appointee. His concurrence was bitter, slashing and triumphant, and it took aim at Roberts, whose concurring opinion in the California case in May had been relied on by courts around the nation to assess the constitutionality of restrictions prompted by the pandemic.


The chief justice’s basic point was that government officials, in consultation with scientific experts, were better positioned than judges to make determinations about public health. But Gorsuch wrote that the opinion, in South Bay Pentecostal Church v. Newsom, was worthless.

“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” he wrote. “Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause. Today, a majority of the court makes this plain.”

“We may not shelter in place when the Constitution is under attack,” Gorsuch wrote. “Things never go well when we do.”

Roberts responded, in a tone suggesting that his patience was being tested, that there was no need to act because Cuomo had, for the time being, lifted the restrictions.

“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” he wrote. “And it may well be that such restrictions violate the Free Exercise Clause. It is not necessary, however, for us to rule on that serious and difficult question at this time.”

The court’s three liberal members were to varying degrees prepared to support the restrictions. Roberts made a point of defending his colleagues from Gorsuch’s attacks, saying they were operating in good faith.


“To be clear,” the chief justice wrote, quoting from Gorsuch’s concurring opinion, “I do not regard my dissenting colleagues as ‘cutting the Constitution loose during a pandemic,’ yielding to ‘a particular judicial impulse to stay out of the way in times of crisis,’ or ‘sheltering in place when the Constitution is under attack.’ They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”

In a separate dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was being reckless. “Justices of this court play a deadly game,” she wrote, “in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”