Scott Gurvey

The Daily Mail produced the wonderful graphic above to go with a story published October 3, 2020. The photo was taken on September 26 and shows the crowd gathered in the White House Rose Garden as Donald Trump introduced Amy Coney Barrett as his nominee to be an associate justice of the Supreme Court of the United States, filling the seat which became vacant upon the death on September 18 of Justice Ruth Bader Ginsburg.

In its October 3 story the Mail reported that nine of the people who attended this event had, at that point, tested positive for the Covid-19 virus. As the picture demonstrates, few of the 100 or so people who attended wore face masks, and all were sitting close together. On October 9, Dr. Anthony Fauci, America’s top infectious disease expert, labeled this as a “Superspreader event.”

An October 5 poll report said more than 9 out of 10 Americans wear a face mask when they leave home. But that clearly does not include Donald Trump, our Covid denying superspreader-in-chief. Nor apparently does it include Amy Coney Barrett, whose nomination was rammed through the Senate on a strict partisan vote and who took her seat on October 27. America’s newest associate justice wants to be sure you can attend superspreader events too.

In the 5-4 decision, Roman Catholic Diocese of Brooklyn v. Cuomo, the new conservative majority, with Barrett casting her decisive first vote, ruled New York Governor Andrew Cuomo had violated the First Amendment guarantee of the right to practice religion when he set temporary pandemic restrictions designed to prevent superspreader events. That decision conflicts with Court rulings earlier this year related to coronavirus restrictions in California and Nevada.

This case, decided along with Agudath Israel of America, et al. v. Cuomo, which raised the same issues and involved a Jewish Synagogue, requested an emergency injunction to permit religious services to continue without the Covid restrictions the governor had imposed when the number of Covid cases in several Brooklyn neighborhoods spiked to alarming numbers.

It’s bad enough that in rendering this decision the hypocritical majority abandoned the oft-cited conservation principal of Federalism, leaving decisions to local authorities. They also abandoned the principal of stare decisis, literally “stand by things decided” in Latin, by rejecting the Court’s ruling earlier this year, defying precedent.

But the most egregious of the new majority’s transgressions was its need to issue the opinion in the first place. The number of Covid cases in Brooklyn had fallen. The Governor’s temporary restrictions had been removed. The case was, in legal terms, “moot,” meaning the decision would have no consequences. The Court usually dismisses such cases.

But not this Court. The new right-wing majority had something to prove. They wanted to announce that they had arrived, they had the power, and they intend to use it. The three “Trump judges,” Trump calls them that, Barrett, Brett Kavanaugh and Neil Gorsuch, joined by Justices Samuel Alito, Clarence Thomas, both to the right of Atilla the Hun, also wanted to stick it to John Roberts, the Chief Justice of the United States.

You know that they knew this decision would stink. Why do you think they released it just short of midnight on Thanksgiving eve? That’s when cowards make an announcement they know will draw criticism. They hope it will be ignored at a time when people are distracted and not paying so much attention to the news.

Roberts is a conservative Republican, there is no question about that. But Roberts is also, alone among the new right-wing of the Court, concerned about the Court’s image and concerned about rendering opinions which are out of touch with a majority of the people. He is also concerned with precedent and order. That has led him to side with the liberal-wing in some key cases. The Affordable Care Act cases in 2012 and 2015. The pandemic restrictions cases earlier this year.

In the May 29 California case, South Bay United Pentecostal Church v. Newsom, Roberts wrote, “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect.”

Roberts’ break with the conservative line outraged the right-wing, and Neil Gorsuch, the man sitting in the seat stolen for him by Moscow Mitch McConnell, drove his shive into Roberts’ back with an acerbic concurring opinion, several pages accusing Roberts of “rewriting history” in his dissenting opinion as well as in his vote in the cases earlier this year. “In the end,” said Gorsuch, while Roberts and the other dissenters may wish to “stay out of the way” and let state officials and experts deal with the crisis of a pandemic, “we may not shelter in place where the Constitution is under attack.” 

Both Catholic Cardinal Timothy Dolan, Archbishop of New York, and Brooklyn Bishop Nicholas DiMarzi praised the Supreme Court for striking down Cuomo’s order. Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel, said of the decision “This is is an historic victory.”

So places of worship can now ignore pandemic restrictions if they choose. In both California and Nevada, congregations are planning to ask the Supreme Court to overturn the decisions that went against them. And what’s next, exempt places of worship from observing construction codes, fire safety rules, or OSHA regulations?

Coincidentally or not, a Hasidic synagogue in Brooklyn planned the wedding of a chief rabbi’s grandson with such secrecy it was able to host thousands of maskless celebrants without the city catching on. The November 8th nuptials inside the Yetev Lev temple in Williamsburg might never have been noticed except that someone posted video on Twitter.

If people want to be so irresponsible during this pandemic why should we care? After all, whatever happens to them, happens to them. But of course the damage is not limited to just them. They will go out and spread the virus throughout the community. And when they get sick, they will crowd the emergency rooms and the intensive care units using up resources which should rightfully go to people who caught Covid even though they acted responsibly. They will also endanger the health care workers who are put at risk as they treat Covid patients. It might be nice if the ERs could turn these people away. But the Hypocritic Oath and in most states the law prohibits that.

In a fiery dissent Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote, “Justices of this Court play a deadly game 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.” Noting that the Court had rejected they challenges to similar measures in California and Nevada earlier this year, she saw no reason for its apparent change of heart. The Court’s ruling, she noted, “will only exacerbate the Nation’s suffering.”

Trust me. There are more reversals, and more suffering, to come from the new conservative majority on Trump’s Supreme Court.

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