Design a site like this with
Get started

What Just happened?

While the minority opinion can be considered one made in good faith, it was indefensible constitutionally.

On 11/25/20, the Supreme Court, in a 5 to 4 decision, decided for The Roman Catholic Diocese of Brooklyn, New York in their suit against Governor Cuomo regarding restrictions in places of worship based on the First Amendment rights regarding freedom of religion.

It was as reported a rather bitter split with some telling statements made among the justices, but there are some statements that standout that I find relevant to the issue of the case, those by Chief Justice Roberts and Justice Gorsuch.

First, there is the curious opinion by Chief Justice Roberts. His dissenting opinion in opposition to the majority was ambiguous. He apparently found it necessary to defend the minority opinion based on his belief that the majority voiced harsh criticism of that. He also noted that the lower court ruling was still pending which would indicate that a Supreme Court ruling was not yet required. Further, as Governor Cuomo had just previously lifted the restrictions, this in his opinion made a ruling moot, at least for the time being.

How awkward for the Chief Justice to find himself in such a position. Was it not the decision of the Supreme Court to hear the case?  Yes, by what is called the “Rule of Four”, at least four of the nine justices agreed to hear the case and issued a writ of certiorari compelling the lower court to submit the case to them.  Why do that and then as Chief Justice cast doubts on the court’s proceeding with the case?

That the Governor lifted the restrictions, at least for the time being, doesn’t change the fact that those restrictions were at issue with the Constitution and therefore relevant to what the Supreme Court actually is there for.

As to his defense of the minority opinion, why was that even necessary as all he had to do was provide an opinion in support of it, not to act as if he were defending those who found in favor of the Governor’s restrictions; at least those three other Justices did their job with conviction, something the Chief Justice appears reluctant to do.

Too often Roberts has found it necessary to be more like an apologists than a judge, as he did with the ACA ruling regarding the mandate, manipulating words to provide cover for it under the pretext of a tax versus a penalty; thankfully that sham has been debunked even by Congress itself, the very basis of a defense for the remainder of ACA to continue under the severability doctrine. These kinds of actions diminish the office of the Chief Justice from the seat of high jurisprudence to a disingenuous role of political manipulation.

Then we have Justice Gorsuch who was the most outspoken of the majority and made two clear and thankfully unequivocal statements.  Firstly we have “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence, courts must resume applying the Free Exercise Clause.”; and then “We may not shelter in place when the Constitution is under attack. Things never go well when we do.”

The first statement makes clear that even during emergencies the Constitution can’t be suspended, and with the second, allowing attacks on the Constitution is always dangerous.  In summary, rights are not something government allows the people, but what the government may not violate even in an emergency.

Now make no mistake, Roberts clearly dissented from the majority opinion, but did so with an obvious attempt to leave the door open with his obfuscation that things may change. What he was defending as “harsh” was the fact that the majority opinion left no doubt that rights that are regulated is an oxymoronic position contrary to what the Constitution says, specifically the First Amendment. While the minority opinion can be considered one made in good faith, it was indefensible constitutionally.

So what just happened? Well, there have been times when the Supreme Court did not always rule constitutionally, and often have appeared as if legislating from the bench. If the appointment of Justice Barrett, a well-known originalist, means that the court is now strengthened in its support of the constitution, it is a welcome development that we can only hope will continue in the future.


Author: jvi7350

Politically I am an independent. While I tend to avoid labels, I consider myself a Libertarian. I find our politics to have deteriorated to a current state of ranting tribialism, and a growing disregard for individual rights; based on the axiom that silence is consent, I choose instead to speak out and therefore launched this blog.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: