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SCOTUS
Re: SCOTUS
Yeah, i recommend you don't read it, Cranky...it'll just fire up your ulcer...
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"The purpose of writing is to inflate weak ideas, obscure poor reasoning, and inhibit clarity. With a little practice, writing can be an intimidating and impenetrable fog." - Calvin, to Hobbes
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seacoaster
- Posts: 8866
- Joined: Thu Aug 02, 2018 4:36 pm
Re: SCOTUS
From Linda Greenhouse, in the Times:
https://www.nytimes.com/2020/06/04/opin ... e=Homepage
"The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.
A Southern California church, represented by a Chicago-based organization, the Thomas More Society, which most often defends anti-abortion activists, had sought the justices’ intervention with the argument that by limiting worshipers to the lesser of 25 percent of building capacity or 100 people, while setting a 50 percent occupancy cap on retail stores, California was discriminating against religion in violation of the Constitution’s Free Exercise Clause.
Given the obvious difference between walking through a store and sitting among fellow worshipers for an hour or more, as well as the documented spread of the virus through church attendance in such places as Sacramento (71 cases), Seattle (32 cases) and South Korea (over 5,000 cases traced to one person at a religious service), California’s limits are both sensitive and sensible, hardly the basis for constitutional outrage or judicial second-guessing.
So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?
It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.
As an astonished country witnessed on Monday night, as he held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude. The recognition that four Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — would have invoked the court’s power to undermine fact-based public policy in the name of a misbegotten claim of religious discrimination was beyond depressing. It was terrifying.
Does that sound like an overstatement? Take a look at Justice Kavanaugh’s dissenting opinion. “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses,” he wrote. “Such discrimination violates the First Amendment.”
It’s interesting that while Justices Gorsuch and Thomas signed Justice Kavanaugh’s opinion, Justice Alito did not. Perhaps he’s just too good a lawyer to subscribe to the flimsy analysis underlying this opinion. Fair enough, but he evidently couldn’t be bothered to explain his own dissenting vote. And no less than his fellow dissenters, he obviously inhaled the unfounded claim of religious discrimination that the president has injected into an atmosphere already saturated with polarizing rhetoric.
Here’s what’s wrong with the Kavanaugh opinion: He throws words around imprecisely in a context where precision is everything. The state’s rules “discriminate.” We’re all against discrimination. But what does this potent word mean? To discriminate, in the way law uses the word, means to treat differently things that are alike, without a good reason for doing so. That’s why racial discrimination, for example, is almost always unconstitutional. People are people regardless of their race, and the government needs a powerful reason for using race to treat people differently.
The concept of discrimination, properly understood, simply doesn’t fit this case. California is not subjecting things that are alike to treatment that’s different. Churches are not like the retail stores or “cannabis dispensaries” in Justice Kavanaugh’s list of “comparable secular businesses.” Sitting in communal worship for an hour or more is not like picking up a prescription, or a pizza, or an ounce of marijuana. You don’t need a degree in either law or public health to figure that out. If anything, California is giving churches preferential treatment, since other places where people gather in large numbers like lecture halls and theaters are still off limits.
So what was the dissenters’ problem? Justice Kavanaugh’s opinion offers a clue. The Christian observance of Pentecost was last Sunday, and the clock was ticking as the justices considered the South Bay United Pentecostal Church’s request. “The church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities,” Justice Kavanaugh wrote. What does that sentence even mean? What’s the secular comparator when it comes to observing Pentecost? A Sunday afternoon softball game?
I’m baffled by why a particular liturgical observance should have even a walk-on role in this opinion. Last weekend was also Shavuot, a major Jewish holiday. But it’s the Christian calendar about which recently appointed federal judges seem exclusively concerned. In April, Judge Justin Walker of the Federal District Court in Louisville, Ky., blocked that city from enforcing a ban on drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” his overheated opinion began. (Judge Walker is Senator Mitch McConnell’s young protégé who, barring a miracle or a pair of righteous Republican senators, is on the verge of confirmation to the powerful federal appeals court in Washington, D.C.).
In any event, no one was stopping the church from observing Pentecost. As its own brief points out, the church conducts as many as five services on a typical Sunday, each attracting 200 to 300 worshipers. As the state points out, it could schedule more services.
The only other opinion filed in this case was that of Chief Justice John Roberts, explaining why the court was denying the church’s request. I am willing to bet that he never intended to write anything; orders denying applications of this sort are typically issued without explanation.
But he must have concluded that the Kavanaugh dissent couldn’t go unrebuted. Writing just for himself in five paragraphs devoid of rhetoric and labeled “concurring in denial of application for injunctive relief,” he offered a sober explanation of the obvious. He noted that “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” The California rule, he observed, “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
After noting the severity of the pandemic and the “dynamic and fact-intensive” question of how to respond to it, Chief Justice Roberts said that the politically accountable state officials charged with answering that question were entitled to act within “broad limits” and “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
Predictably, the chief justice was excoriated on the political right, in recognition that his vote was the one that mattered, just as in the Obamacare case eight years ago, for which the right has never forgiven him. “It wasn’t just religious liberty that Chief Justice Roberts strangled,” read the headline on a piece in The Hill by Andrew McCarthy, a reliable ally of the president. The Wall Street Journal accused Chief Justice Roberts of “faux judicial modesty,” in an echo, which the chief justice surely didn’t miss, of the “faux judicial restraint” critique that Justice Antonin Scalia hurled at him early in his Supreme Court tenure. Everyone who cares about the Supreme Court is busy looking for signs of how John Roberts will navigate the political thicket in which the court finds itself, how he will reconcile his conservative heart and his institution- and history-minded head.
Until recently, I thought I saw signs that at least he wasn’t completely alone, that Brett Kavanaugh was evolving into something of a soul mate, willing to stand with the chief and provide a bit of cover. For example, the court just last week turned down a Trump administration request to block a federal district judge’s order to consider moving hundreds of medically vulnerable inmates out of a low-security federal prison in Ohio. The unsigned order noted only that “Justice Thomas, Justice Alito and Justice Gorsuch would grant the application.” (Note that these three observed the norm, in cases that reach the court in this posture, of noting their dissent without further explanation.) On the mental chart that I maintain of such developments, Justice Kavanaugh’s refusal to join the three dissenters was a data point.
But then came the California church case. Justice Kavanaugh might have chosen to observe the norm, casting his vote without issuing an opinion that served only to raise the political temperature. Instead of that unspoken gesture toward collegiality, he gave us more proof that the polarization roiling the country has the Supreme Court in its grip. The court can’t save us; that much is clear. It can’t even save itself."
https://www.nytimes.com/2020/06/04/opin ... e=Homepage
"The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.
A Southern California church, represented by a Chicago-based organization, the Thomas More Society, which most often defends anti-abortion activists, had sought the justices’ intervention with the argument that by limiting worshipers to the lesser of 25 percent of building capacity or 100 people, while setting a 50 percent occupancy cap on retail stores, California was discriminating against religion in violation of the Constitution’s Free Exercise Clause.
Given the obvious difference between walking through a store and sitting among fellow worshipers for an hour or more, as well as the documented spread of the virus through church attendance in such places as Sacramento (71 cases), Seattle (32 cases) and South Korea (over 5,000 cases traced to one person at a religious service), California’s limits are both sensitive and sensible, hardly the basis for constitutional outrage or judicial second-guessing.
So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?
It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.
As an astonished country witnessed on Monday night, as he held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude. The recognition that four Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — would have invoked the court’s power to undermine fact-based public policy in the name of a misbegotten claim of religious discrimination was beyond depressing. It was terrifying.
Does that sound like an overstatement? Take a look at Justice Kavanaugh’s dissenting opinion. “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses,” he wrote. “Such discrimination violates the First Amendment.”
It’s interesting that while Justices Gorsuch and Thomas signed Justice Kavanaugh’s opinion, Justice Alito did not. Perhaps he’s just too good a lawyer to subscribe to the flimsy analysis underlying this opinion. Fair enough, but he evidently couldn’t be bothered to explain his own dissenting vote. And no less than his fellow dissenters, he obviously inhaled the unfounded claim of religious discrimination that the president has injected into an atmosphere already saturated with polarizing rhetoric.
Here’s what’s wrong with the Kavanaugh opinion: He throws words around imprecisely in a context where precision is everything. The state’s rules “discriminate.” We’re all against discrimination. But what does this potent word mean? To discriminate, in the way law uses the word, means to treat differently things that are alike, without a good reason for doing so. That’s why racial discrimination, for example, is almost always unconstitutional. People are people regardless of their race, and the government needs a powerful reason for using race to treat people differently.
The concept of discrimination, properly understood, simply doesn’t fit this case. California is not subjecting things that are alike to treatment that’s different. Churches are not like the retail stores or “cannabis dispensaries” in Justice Kavanaugh’s list of “comparable secular businesses.” Sitting in communal worship for an hour or more is not like picking up a prescription, or a pizza, or an ounce of marijuana. You don’t need a degree in either law or public health to figure that out. If anything, California is giving churches preferential treatment, since other places where people gather in large numbers like lecture halls and theaters are still off limits.
So what was the dissenters’ problem? Justice Kavanaugh’s opinion offers a clue. The Christian observance of Pentecost was last Sunday, and the clock was ticking as the justices considered the South Bay United Pentecostal Church’s request. “The church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities,” Justice Kavanaugh wrote. What does that sentence even mean? What’s the secular comparator when it comes to observing Pentecost? A Sunday afternoon softball game?
I’m baffled by why a particular liturgical observance should have even a walk-on role in this opinion. Last weekend was also Shavuot, a major Jewish holiday. But it’s the Christian calendar about which recently appointed federal judges seem exclusively concerned. In April, Judge Justin Walker of the Federal District Court in Louisville, Ky., blocked that city from enforcing a ban on drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” his overheated opinion began. (Judge Walker is Senator Mitch McConnell’s young protégé who, barring a miracle or a pair of righteous Republican senators, is on the verge of confirmation to the powerful federal appeals court in Washington, D.C.).
In any event, no one was stopping the church from observing Pentecost. As its own brief points out, the church conducts as many as five services on a typical Sunday, each attracting 200 to 300 worshipers. As the state points out, it could schedule more services.
The only other opinion filed in this case was that of Chief Justice John Roberts, explaining why the court was denying the church’s request. I am willing to bet that he never intended to write anything; orders denying applications of this sort are typically issued without explanation.
But he must have concluded that the Kavanaugh dissent couldn’t go unrebuted. Writing just for himself in five paragraphs devoid of rhetoric and labeled “concurring in denial of application for injunctive relief,” he offered a sober explanation of the obvious. He noted that “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” The California rule, he observed, “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
After noting the severity of the pandemic and the “dynamic and fact-intensive” question of how to respond to it, Chief Justice Roberts said that the politically accountable state officials charged with answering that question were entitled to act within “broad limits” and “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
Predictably, the chief justice was excoriated on the political right, in recognition that his vote was the one that mattered, just as in the Obamacare case eight years ago, for which the right has never forgiven him. “It wasn’t just religious liberty that Chief Justice Roberts strangled,” read the headline on a piece in The Hill by Andrew McCarthy, a reliable ally of the president. The Wall Street Journal accused Chief Justice Roberts of “faux judicial modesty,” in an echo, which the chief justice surely didn’t miss, of the “faux judicial restraint” critique that Justice Antonin Scalia hurled at him early in his Supreme Court tenure. Everyone who cares about the Supreme Court is busy looking for signs of how John Roberts will navigate the political thicket in which the court finds itself, how he will reconcile his conservative heart and his institution- and history-minded head.
Until recently, I thought I saw signs that at least he wasn’t completely alone, that Brett Kavanaugh was evolving into something of a soul mate, willing to stand with the chief and provide a bit of cover. For example, the court just last week turned down a Trump administration request to block a federal district judge’s order to consider moving hundreds of medically vulnerable inmates out of a low-security federal prison in Ohio. The unsigned order noted only that “Justice Thomas, Justice Alito and Justice Gorsuch would grant the application.” (Note that these three observed the norm, in cases that reach the court in this posture, of noting their dissent without further explanation.) On the mental chart that I maintain of such developments, Justice Kavanaugh’s refusal to join the three dissenters was a data point.
But then came the California church case. Justice Kavanaugh might have chosen to observe the norm, casting his vote without issuing an opinion that served only to raise the political temperature. Instead of that unspoken gesture toward collegiality, he gave us more proof that the polarization roiling the country has the Supreme Court in its grip. The court can’t save us; that much is clear. It can’t even save itself."
Re: SCOTUS
Great article seacoaster, thanks so much for posting it.
People that rail against "FLP" ideology ought to look this over when they wonder what all the fuss is about what Turkey Wattle and his arch conservative brethren at the Federalist Society are up to in their crusade to pack the courts with uber-conservative judges. The paragraphs on the Kentucky judge that may soon be confirmed to the powerful federal appeal court in DC are very revealing in this regard. Judge Walker is a protege of Moscow Mitch's...and the damage this quack could do on the DC Circuit Court is immeasurable. Rel world consequences of rightwingnut ideology.
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People that rail against "FLP" ideology ought to look this over when they wonder what all the fuss is about what Turkey Wattle and his arch conservative brethren at the Federalist Society are up to in their crusade to pack the courts with uber-conservative judges. The paragraphs on the Kentucky judge that may soon be confirmed to the powerful federal appeal court in DC are very revealing in this regard. Judge Walker is a protege of Moscow Mitch's...and the damage this quack could do on the DC Circuit Court is immeasurable. Rel world consequences of rightwingnut ideology.
..
"The purpose of writing is to inflate weak ideas, obscure poor reasoning, and inhibit clarity. With a little practice, writing can be an intimidating and impenetrable fog." - Calvin, to Hobbes
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seacoaster
- Posts: 8866
- Joined: Thu Aug 02, 2018 4:36 pm
Re: SCOTUS
Judicial restraint is a good idea for the Four Horsemen...until it isn't. Kavanaugh's opinion is a f*cking adventure in outcome-determinative thinking, blithely putting aside the factual record that is supposed to drive decision-making.dislaxxic wrote: ↑Thu Jun 04, 2020 9:15 am Great article seacoaster, thanks so much for posting it.
People that rail against "FLP" ideology ought to look this over when they wonder what all the fuss is about what Turkey Wattle and his arch conservative brethren at the Federalist Society are up to in their crusade to pack the courts with uber-conservative judges. The paragraphs on the Kentucky judge that may soon be confirmed to the powerful federal appeal court in DC are very revealing in this regard. Judge Walker is a protege of Moscow Mitch's...and the damage this quack could do on the DC Circuit Court is immeasurable. Rel world consequences of rightwingnut ideology.
..
A good judge has strongly held values that are restrained by stronger principles. The Horsemen's values override their principles -- and this is just deadly to good decision-making and the legitimacy of the Court's decisions. And Roberts plainly sees this. I am afraid we should ready ourselves and watch the silly word games they will play to say Trump is immune from a subpoena, unlike every other human on the planet.
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youthathletics
- Posts: 16172
- Joined: Mon Jul 30, 2018 7:36 pm
Re: SCOTUS
Not picking a fight here. What is often not written, can be left open for interpretation or possible common sense of fundamental law. Is it remotely possible, (and turn off your partisan hats), that these four horseman as they are called, did not want to set a precedent that could be a stepping stone towards something truly unintended in the future?seacoaster wrote: ↑Thu Jun 04, 2020 10:22 amJudicial restraint is a good idea for the Four Horsemen...until it isn't. Kavanaugh's opinion is a f*cking adventure in outcome-determinative thinking, blithely putting aside the factual record that is supposed to drive decision-making.dislaxxic wrote: ↑Thu Jun 04, 2020 9:15 am Great article seacoaster, thanks so much for posting it.
People that rail against "FLP" ideology ought to look this over when they wonder what all the fuss is about what Turkey Wattle and his arch conservative brethren at the Federalist Society are up to in their crusade to pack the courts with uber-conservative judges. The paragraphs on the Kentucky judge that may soon be confirmed to the powerful federal appeal court in DC are very revealing in this regard. Judge Walker is a protege of Moscow Mitch's...and the damage this quack could do on the DC Circuit Court is immeasurable. Rel world consequences of rightwingnut ideology.
..
A good judge has strongly held values that are restrained by stronger principles. The Horsemen's values override their principles -- and this is just deadly to good decision-making and the legitimacy of the Court's decisions. And Roberts plainly sees this. I am afraid we should ready ourselves and watch the silly word games they will play to say Trump is immune from a subpoena, unlike every other human on the planet.
A fraudulent intent, however carefully concealed at the outset, will generally, in the end, betray itself.
~Livy
“There are two ways to be fooled. One is to believe what isn’t true; the other is to refuse to believe what is true.” -Soren Kierkegaard
~Livy
“There are two ways to be fooled. One is to believe what isn’t true; the other is to refuse to believe what is true.” -Soren Kierkegaard
Re: SCOTUS
Not putting on the boxing gloves...but what is it you're asking? These four justices appear to be accepting Kavanaugh's reality-deprived "interpretation" of the facts in this case.youthathletics wrote: ↑Thu Jun 04, 2020 10:32 amNot picking a fight here. What is often not written, can be left open for interpretation or possible common sense of fundamental law. Is it remotely possible, (and turn off your partisan hats), that these four horseman as they are called, did not want to set a precedent that could be a stepping stone towards something truly unintended in the future?
What unintended precedent do you see them avoiding, exactly?
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"The purpose of writing is to inflate weak ideas, obscure poor reasoning, and inhibit clarity. With a little practice, writing can be an intimidating and impenetrable fog." - Calvin, to Hobbes
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cradleandshoot
- Posts: 15877
- Joined: Fri Oct 05, 2018 4:42 pm
Re: SCOTUS
I have last years cayenne peppers to do that...
We don't make mistakes, we have happy accidents.
Bob Ross:
Bob Ross:
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cradleandshoot
- Posts: 15877
- Joined: Fri Oct 05, 2018 4:42 pm
Re: SCOTUS
No problemo.... I needed the TP.
We don't make mistakes, we have happy accidents.
Bob Ross:
Bob Ross:
Re: SCOTUS
Not at all. Their main principle is perfectly clear: Christian supremacy.
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seacoaster
- Posts: 8866
- Joined: Thu Aug 02, 2018 4:36 pm
Re: SCOTUS
The Court holds today -- 6-3, with Gorsuch writing the opinion for the majority -- that terminating the employment of a person for being gay or lesbian violates Title VII. Alito holds serve for the Catholic Church doctrine when he was a boy, again.
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DocBarrister
- Posts: 6701
- Joined: Sat Aug 04, 2018 12:00 pm
Re: SCOTUS
Interesting to see Gorsuch and Roberts in the majority on this one.seacoaster wrote: ↑Mon Jun 15, 2020 10:27 am The Court holds today -- 6-3, with Gorsuch writing the opinion for the majority -- that terminating the employment of a person for being gay or lesbian violates Title VII. Alito holds serve for the Catholic Church doctrine when he was a boy, again.
No question that Scalia would have voted the other way.
DocBarrister
@DocBarrister
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DocBarrister
- Posts: 6701
- Joined: Sat Aug 04, 2018 12:00 pm
Re: SCOTUS
And for good measure, a loss for the racists.
Washington (CNN)The Supreme Court on Monday left in place a lower court opinion upholding one of California's so-called sanctuary laws that limits cooperation between law enforcement and federal immigration authorities, a measure that the Trump administration says is meant to "undermine" federal immigration enforcement.
The Trump administration had asked the court to step in and review the law and the court declined to do so.
https://www.cnn.com/2020/06/15/politics ... index.html
DocBarrister
Washington (CNN)The Supreme Court on Monday left in place a lower court opinion upholding one of California's so-called sanctuary laws that limits cooperation between law enforcement and federal immigration authorities, a measure that the Trump administration says is meant to "undermine" federal immigration enforcement.
The Trump administration had asked the court to step in and review the law and the court declined to do so.
https://www.cnn.com/2020/06/15/politics ... index.html
DocBarrister
@DocBarrister
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DocBarrister
- Posts: 6701
- Joined: Sat Aug 04, 2018 12:00 pm
Re: SCOTUS
Finally, with losses for bigots and racists already in the books, SCOTUS hit the trifecta by delivering a loss to gun nuts.
https://www.washingtonpost.com/politics ... story.html
DocBarrister
https://www.washingtonpost.com/politics ... story.html
DocBarrister
@DocBarrister
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seacoaster
- Posts: 8866
- Joined: Thu Aug 02, 2018 4:36 pm
Re: SCOTUS
Remember, the issue here is not constitutional; it is an issue only of statutory interpretation. Scalia would have, as you say, been in the minority here due to his predilection with making Congress speak plainly whenever it decided to do something nice for Americans. Roberts's joining in the majority is less of a surprise.DocBarrister wrote: ↑Mon Jun 15, 2020 10:40 amInteresting to see Gorsuch and Roberts in the majority on this one.seacoaster wrote: ↑Mon Jun 15, 2020 10:27 am The Court holds today -- 6-3, with Gorsuch writing the opinion for the majority -- that terminating the employment of a person for being gay or lesbian violates Title VII. Alito holds serve for the Catholic Church doctrine when he was a boy, again.
No question that Scalia would have voted the other way.
DocBarrister
Re: SCOTUS
"The purpose of writing is to inflate weak ideas, obscure poor reasoning, and inhibit clarity. With a little practice, writing can be an intimidating and impenetrable fog." - Calvin, to Hobbes
Re: SCOTUS
And Thomas issues a strong dissent on not reviewing qualified immunity for police!
The times they are a changin ...
The times they are a changin ...
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Peter Brown
- Posts: 12878
- Joined: Fri Mar 15, 2019 11:19 am
Re: SCOTUS
I agree with the opinion: Gorsuch is a libertarian at heart.
More intriguing is once again, the Court proves that only the 'conservative' jurists have any interest in law. The libs vote as a pack, never venturing from each other. I'm not sure they even read law books any longer; it's apparent they simply take their cues from the DNC.
Don't ever elevate liberal jurists. That will end America's greatness.
Re: SCOTUS
The first phrase of the first sentence in the bill of rights:seacoaster wrote: ↑Thu Jun 04, 2020 8:14 am From Linda Greenhouse, in the Times:
https://www.nytimes.com/2020/06/04/opin ... e=Homepage
"The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.
A Southern California church, represented by a Chicago-based organization, the Thomas More Society, which most often defends anti-abortion activists, had sought the justices’ intervention with the argument that by limiting worshipers to the lesser of 25 percent of building capacity or 100 people, while setting a 50 percent occupancy cap on retail stores, California was discriminating against religion in violation of the Constitution’s Free Exercise Clause.
Given the obvious difference between walking through a store and sitting among fellow worshipers for an hour or more, as well as the documented spread of the virus through church attendance in such places as Sacramento (71 cases), Seattle (32 cases) and South Korea (over 5,000 cases traced to one person at a religious service), California’s limits are both sensitive and sensible, hardly the basis for constitutional outrage or judicial second-guessing.
So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?
It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.
As an astonished country witnessed on Monday night, as he held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude. The recognition that four Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — would have invoked the court’s power to undermine fact-based public policy in the name of a misbegotten claim of religious discrimination was beyond depressing. It was terrifying.
Does that sound like an overstatement? Take a look at Justice Kavanaugh’s dissenting opinion. “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses,” he wrote. “Such discrimination violates the First Amendment.”
It’s interesting that while Justices Gorsuch and Thomas signed Justice Kavanaugh’s opinion, Justice Alito did not. Perhaps he’s just too good a lawyer to subscribe to the flimsy analysis underlying this opinion. Fair enough, but he evidently couldn’t be bothered to explain his own dissenting vote. And no less than his fellow dissenters, he obviously inhaled the unfounded claim of religious discrimination that the president has injected into an atmosphere already saturated with polarizing rhetoric.
Here’s what’s wrong with the Kavanaugh opinion: He throws words around imprecisely in a context where precision is everything. The state’s rules “discriminate.” We’re all against discrimination. But what does this potent word mean? To discriminate, in the way law uses the word, means to treat differently things that are alike, without a good reason for doing so. That’s why racial discrimination, for example, is almost always unconstitutional. People are people regardless of their race, and the government needs a powerful reason for using race to treat people differently.
The concept of discrimination, properly understood, simply doesn’t fit this case. California is not subjecting things that are alike to treatment that’s different. Churches are not like the retail stores or “cannabis dispensaries” in Justice Kavanaugh’s list of “comparable secular businesses.” Sitting in communal worship for an hour or more is not like picking up a prescription, or a pizza, or an ounce of marijuana. You don’t need a degree in either law or public health to figure that out. If anything, California is giving churches preferential treatment, since other places where people gather in large numbers like lecture halls and theaters are still off limits.
So what was the dissenters’ problem? Justice Kavanaugh’s opinion offers a clue. The Christian observance of Pentecost was last Sunday, and the clock was ticking as the justices considered the South Bay United Pentecostal Church’s request. “The church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities,” Justice Kavanaugh wrote. What does that sentence even mean? What’s the secular comparator when it comes to observing Pentecost? A Sunday afternoon softball game?
I’m baffled by why a particular liturgical observance should have even a walk-on role in this opinion. Last weekend was also Shavuot, a major Jewish holiday. But it’s the Christian calendar about which recently appointed federal judges seem exclusively concerned. In April, Judge Justin Walker of the Federal District Court in Louisville, Ky., blocked that city from enforcing a ban on drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” his overheated opinion began. (Judge Walker is Senator Mitch McConnell’s young protégé who, barring a miracle or a pair of righteous Republican senators, is on the verge of confirmation to the powerful federal appeals court in Washington, D.C.).
In any event, no one was stopping the church from observing Pentecost. As its own brief points out, the church conducts as many as five services on a typical Sunday, each attracting 200 to 300 worshipers. As the state points out, it could schedule more services.
The only other opinion filed in this case was that of Chief Justice John Roberts, explaining why the court was denying the church’s request. I am willing to bet that he never intended to write anything; orders denying applications of this sort are typically issued without explanation.
But he must have concluded that the Kavanaugh dissent couldn’t go unrebuted. Writing just for himself in five paragraphs devoid of rhetoric and labeled “concurring in denial of application for injunctive relief,” he offered a sober explanation of the obvious. He noted that “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” The California rule, he observed, “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
After noting the severity of the pandemic and the “dynamic and fact-intensive” question of how to respond to it, Chief Justice Roberts said that the politically accountable state officials charged with answering that question were entitled to act within “broad limits” and “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
Predictably, the chief justice was excoriated on the political right, in recognition that his vote was the one that mattered, just as in the Obamacare case eight years ago, for which the right has never forgiven him. “It wasn’t just religious liberty that Chief Justice Roberts strangled,” read the headline on a piece in The Hill by Andrew McCarthy, a reliable ally of the president. The Wall Street Journal accused Chief Justice Roberts of “faux judicial modesty,” in an echo, which the chief justice surely didn’t miss, of the “faux judicial restraint” critique that Justice Antonin Scalia hurled at him early in his Supreme Court tenure. Everyone who cares about the Supreme Court is busy looking for signs of how John Roberts will navigate the political thicket in which the court finds itself, how he will reconcile his conservative heart and his institution- and history-minded head.
Until recently, I thought I saw signs that at least he wasn’t completely alone, that Brett Kavanaugh was evolving into something of a soul mate, willing to stand with the chief and provide a bit of cover. For example, the court just last week turned down a Trump administration request to block a federal district judge’s order to consider moving hundreds of medically vulnerable inmates out of a low-security federal prison in Ohio. The unsigned order noted only that “Justice Thomas, Justice Alito and Justice Gorsuch would grant the application.” (Note that these three observed the norm, in cases that reach the court in this posture, of noting their dissent without further explanation.) On the mental chart that I maintain of such developments, Justice Kavanaugh’s refusal to join the three dissenters was a data point.
But then came the California church case. Justice Kavanaugh might have chosen to observe the norm, casting his vote without issuing an opinion that served only to raise the political temperature. Instead of that unspoken gesture toward collegiality, he gave us more proof that the polarization roiling the country has the Supreme Court in its grip. The court can’t save us; that much is clear. It can’t even save itself."
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,
I would have thought 9-0 to block the state from prohibiting the exercise thereof—The constitution wasn't written to apply only when things are going well.
Government isn't permitted to tell us when they'll allow us to exercise our constitutional rights. 5 SCOTUS disagree.
Re: SCOTUS
You are a little late to the party on this one, 6ft, but the court didn’t prohibit the exercise of religion. The court simply upheld a limit on the number of people who could be in the church.
Functionally, very similar to fire codes which for different health and safety reasons limit the number of people in a church. No one claims fire codes violate the First Amendment.
Functionally, very similar to fire codes which for different health and safety reasons limit the number of people in a church. No one claims fire codes violate the First Amendment.