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You weren’t the only one who missed it when the newly radicalized Supreme Court issued a stark warning last month that it may use the coronavirus pandemic to attack the power of the executive branch, potentially hamstringing President Joe Biden and Democratic governors in the midst of the greatest crisis America has faced since World War II.
The threat went mostly unnoticed because it came as the nation’s highest court passed on the opportunity to rule upon an audacious challenge to a governor’s power to protect the public health during the height of the outbreak.
But the decision made the court’s intentions clear, and also raised a warning flag about the imminent threat the court poses to both public health and America’s constitutional order.
The story began as winter approached last year and Kentucky, like a number of states, faced an imminent third wave of the pandemic on the verge of getting out of control. Seeking to avoid a catastrophe, the state’s Democratic governor, Andy Beshear, responded by implementing a number of emergency public health measures including limitations on the size of indoor gatherings, a temporary ban on indoor seating at bars and restaurants, and limits on the size of weddings and funerals—as well as the closure of K-12 schools to in-person instruction from late November to early January, to be followed by a hybrid instruction model thereafter.
While these measures, like many taken by responsible government officials throughout the pandemic, were burdensome, Beshear’s record more than merited public confidence. He had been a leader in taking proactive measures to limit the spread of the virus. Acting with the advice of his health commissioner, a former president of the American Medical Association, Beshear, among other things, made an early declaration of a state of emergency and imposed targeted social distancing mandates that had substantially constrained the rates of infection in his state.
The contrast with Kentucky’s neighbor Tennessee is notable. Tennessee currently had a positivity rate of 21.7 percent, while Kentucky’s rate is 15.6 percent. Under Republican Governor Bill Lee, Tennessee had waited until late December to mandate new social gathering restrictions and the state government still does not require mask-wearing, even as it faces one of the most uncontrolled outbreaks in the country.
Kentuckians apparently recognize the merits of Beshear’s leadership. A recent poll found that he has a 59 percent overall approval rating, and that 58 percent of the state’s residents approve of his handling of the pandemic. Furthermore, the same poll found a 77 percent approval rate for Beshear’s indoor mask mandate, a 55 percent percent approval rate for his limit on indoor gatherings, and 62 percent support for his temporary school closure order.
Yet, despite Beshear’s demonstrable record of relative success in following a science-based response to the pandemic, the governor, a Democrat in a GOP dominated state, has been met throughout 2020 by a barrage of Republican attacks upon his efforts to control the outbreak. For example, state legislators have declared an intention to seek to limit the governor’s authority to protect the public health during the emergency; and Senator Rand Paul recently made an absurd, evidence-free declaration that Beshear’s coronavirus restrictions have done nothing to curb the pandemic.
It therefore should come as no surprise that, immediately after Beshear implemented his most recent measures to mitigate the growing threat to the public health of Tennesseans, the state’s entire GOP establishment set about criticizing them. Republican leaders ultimately placed their focus on an unusual, and absurd, constitutional challenge to the governor’s temporary school closure order, brought by private religious schools.
The religious schools claimed that the governor’s school closure order violated their First Amendment right to the free exercise of religion. The obvious problem, however, was that the temporary closure order was not directed at religious schools, but rather applied to all K-12 schools in the state—and the Supreme Court had long recognized that the First Amendment is not violated by a governmental regulation of general applicability that has an incidental impact on religious practice.
Furthermore, until recently, courts have been extremely reticent to interfere with the public health judgments of state and federal executive branch officials, particularly during times of emergency. Based on that principle, the Supreme Court twice rejected efforts in 2020 to void science-based public health regulations that limited in-person religious worship services, reasoning that the “Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”
Given those precedents, it is unsurprising that, while a GOP-appointed judge initially ruled in favor of the religious schools challenge to Beshear’s order, an intermediate appellate court issued a decision upholding the order.
But the Supreme Court is an institution in flux, due to its packing—along with much of the rest of the federal judiciary—with extremist Trump nominees. And the level of the Supreme Court’s deference towards state officials’ response to the pandemic has changed with the ascension of Trump’s third appointee to the Supreme Court, Amy Coney Barrett.
In November, by a 5-4 vote with Barrett casting the deciding vote, the court overruled its recent decision in a lawsuit brought by the Brooklyn Catholic Diocese and an association of Jewish congregations. The court enjoined a regulation imposed by Governor Andrew Cuomo that temporarily limited the size of religious services in areas with high infection rates as part of a comprehensive, science-based regulatory scheme that has, at least until recently, tamed what was a raging pandemic in the state.
While itself radical, and unprecedented, the New York decision was at least grounded in a contention that Cuomo had “targeted” religious practice for an unfair burden. Indeed, the court went so far as to suggest that Cuomo may have “gerrymandered” the affected districts so as to impact certain Orthodox Jewish synagogues. By contrast, there was no colorable basis to charge Beshear with singling out religion by imposing an order that closed all schools in the state, the vast majority of which are public, non-religious institutions.
Yet several of the most reactionary justices on a now extremely right-wing court had given a clear indication that their intention extended beyond protecting religion from improper government regulation and that—like the GOP’s political leadership—their actual agenda was to undermine the authority and power of government itself, at least when the government at issue is run by an elected official from the Democratic Party.
During the four years of the Trump administration, the Supreme Court has been notably deferential toward presidential power, and—with a few notable examples—has gone far out of its way to uphold even the most extreme exercises of executive power by the president.
But in a speech he gave before the Federalist Society days after Trump’s electoral loss, Justice Samuel Alito expressed nothing short of alarm at what he described as the danger of governors and presidents grasping to wield power through appointed officials, at the expense of state and federal legislative branches, and—in Alito’s view—acting beyond their constitutional authority.
Echoing reasoning that the so-called Lochner-era Supreme Court employed to strike down New Deal federal programs early in Franklin Roosevelt’s administration, Alito argued that “appointed experts” sitting in government agencies were assuming what amounted to legislative authority, and in the process, seeking to make government operate “more scientific[ally]”—a development Alito apparently found alarming. Alito clearly indicated that these overreaching officials needed to be reined in, presumably by the courts.
Alito went on to suggest that one of the battle lines in the coming struggle against scientifically informed government expertise would be the pandemic, because, the justice warned, “elite groups” of supposedly power-hungry experts were taking advantage of the catastrophic health emergency to gain power for themselves through the exercise of “enormous executive discretion,” in the name of protecting the public.
In his concurrence in the Brooklyn decision, Justice Neil Gorsuch echoed Alito’s tirade against the danger of scientifically informed elected officials, expressing outrage at the audacity of the (largely Democratic) elected officials who have, “with the flick of a pen” taken decisive actions to protect their citizens from a deadly virus. Thus, Gorsuch made clear that the court was sending a message to Cuomo and his ilk that their days of acting with impunity to protect their constituents, under cover of a deadly health emergency, were numbered.
The apparent eagerness of some justices to teach a lesson to “Democrat” governors—and by implication, the incoming Democratic president—must have been whetted when former White House Counsel Don McGahn (who was largely responsible for selecting many of Trump’s judicial nominees) submitted a brief on behalf of Mitch McConnell and other GOP Senators. McGahn suggested that Beshear—who, along with his wife, is a church deacon—has a systemic “lack of regard for Free Exercise rights.” McGahn conveniently omitted the fact that, even as Beshear imposed other restrictions during the pandemic, he had actually eliminated all restrictions on attendance at worship services.
The Supreme Court, however, chose not to immediately enjoin Beshear’s well-founded emergency health measure. Yet, the court’s decision declining to impose an emergency bar on Beshear’s mandates was notably far from definitive. The unsigned majority opinion emphasized that the governor’s order to cease all in-person schooling was set to expire in a matter of days, and furthermore, that some of the arguments challenging the order’s constitutionality had not been properly presented.
The decision went on to indicate that the plaintiff religious schools are welcome to reassert their challenges again “if the Governor issues a school-closing order that applies in the new year.” Justices Gorsuch and Alito each issued dissenting opinions (which both joined) underlining, in Alito’s words, that “no one should misinterpret that denial as signifying approval” of the lower appellate court’s decision adhering to long-standing Supreme Court precedent, or of the lower court’s deference to the scientifically grounded judgement of an elected governor. Rather, Alito explained, the “Court’s order . . . [was] based primarily on timing.” For his part, Gorsuch emphasized that Beshear had chosen to allow people in Kentucky to go to concerts, while preventing them from “pray[ing] together in a classroom,” and argued in favor of vacating the denial of the injunction, and returning the case to the lower courts for further consideration under the “proper legal standards.”
Accordingly, rather than definitively rejecting the absurd proposition that a scientifically grounded emergency health regulation that is not directed at, and indeed has only an incidental impact on, religious institutions can somehow violate the Constitution, the court deliberately left the question open.
And that should be a red flag for anyone concerned with whether President Biden will have the ability to fully address the unprecedented health crisis that Trump has botched, with catastrophic consequences, for the past year.
With the Democrats about to gain an effective majority in the Senate, the GOP’s ability to stymie Biden’s legislative efforts will be more limited. But the now stridently reactionary Supreme Court could pose a great danger to the incoming president’s ability to govern and to save lives. In his Federalist Society speech, Alito wistfully alluded to rulings of the Lochner Court majority that repeatedly voided President Roosevelt’s efforts to respond to the catastrophe of the Depression, and suggested that the current court should likewise act to rein in the so-called administrative state.
If Alito, Gorsuch, Barrett and their colleagues have their way, such a reactionary remaking of constitutional law could happen soon, potentially at the cost of many, many more lives.