Barrett Did Not Affirm the Illinois Lockdown Order

Twitter is awash with false claims that Judge Amy Coney Barrett should not be nominated to the Supreme Court because she supported the draconian lockdown orders issued by Illinois Governor J.B. Pritzker. More mendaciously, some are claiming that she supported the Democrat Pritzker in excusing violent rioters from the lockdown requirements through which ordinary law abiding citizens are required to suffer.

This falsehood is magnified because it obscures what Barrett actually did in the case: she affirmed a hard-won exemption for religious worship from the generally odious lockdown.  

The plaintiff in the case, the Illinois Republican Party, challenged only the worship exemption (not the lockdown generally), arguing that it was wrong to exempt only religious services from the lockdown. Why the GOP geniuses didn’t just challenge the constitutionality of subjecting their own political activities to the lockdown is anybody’s guess.

But given the argument the Republicans in fact made, Barrett concluded that religious worship occupies such an elevated status, even as compared to other First Amendment-protected rights, that it was not categorically illegal for Pritzker to limit the exemption to religious services.

Again, the Illinois Republican establishment was not challenging the lockdown order generally (or anything to do with failing to enforce the orders against rioters). Federal judges aren’t supposed to go beyond the issues raised by the parties in order to reach points that they would prefer to rule on. We call judges who engage in that practice by a familiar name: “activists.”

Those who are debating the merits of Judge Barrett’s nomination should at least get the facts straight about the cases she rules in, and what her legal rulings actually say. When you consider that she strongly endorsed a very protective view of religious liberty, Barrett may be exactly the one religious conservatives want on the Supreme Court to stand against waffling from Chief Justice John Roberts.

About Scot S. Grant

Scot S. Grant is the pseudonym of a constitutional litigator living in California, where he has decided to fight it out instead of fleeing.

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