An America First Court?

It was big news wrapped up in a small order, a temporary injunction (which may well be irrelevant anyway). But the subject is the biggest story of the year: a legal limit on COVID restrictions. Even in acting against the rampaging COVID epidemic, the State of New York may not discriminate against houses of worship and must protect religious liberty. So spoke the Supreme Court the day before Thanksgiving in a five to four ruling that made clear the pivotal role played by new appointee Justice Amy Coney Barrett.

While notable for this reversal of rulings favoring COVID authoritarians earlier this year, the Court’s overturning of Governor Andrew Cuomo’s order may signify broader, perhaps revolutionary change. The Court might go well beyond religious liberty issues to reconsider earlier 5-4, 6-3 decisions that went against fundamental American principles of equality and liberty, whatever subject they concerned—the administrative state, civil rights, and immigration. 

Thus, the case of Roman Catholic Diocese of Brooklyn v. Cuomo is an opportunity to adopt a new jurisprudence altogether, which  bases itself onthe first principles of American politics as expressed in the Declaration of Independence. 

Before we dare contemplate such an astounding result, we must first consider what happened on the mundane legal level. The unsigned per curiam opinion struck down the governor’s orders limiting churches (and synagogues, represented by Orthodox Jews in a parallel suit) from having more than 10 or 25 persons, while “essential” businesses such as liquor stores, bike shops, or law firms, among others, suffered far less regulation and enjoyed more customer capacity. The Catholic churches reportedly recorded no instance of COVID transmission after they reopened. And “even in a pandemic, the Constitution cannot be put away and forgotten.” More specifically, the governor’s orders “strike at the very heart of the First Amendment’s guarantee of religious liberty.” 

As if this voice of reason were not enough, the occasion also allowed Justice Neil Gorsuch to unleash a pre-Thanksgiving banquet of bombast against Chief Justice John Roberts, for the  broad powers he gave the government in earlier COVID rulings. One might infer that political favoritism, not science, lay behind the governor’s rationales for favorable treatment of various businesses versus the churches and synagogues: “At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers ‘essential’…. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?” And, it gets better, reminding us of the Chief Justice’s flip on Obamacare, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” 

And an even deeper cut, “we may not shelter in place when the Constitution is under attack. Things never go well when we do.” As for Roberts’ insistence that churches might always reapply for a stay of a renewed order, Gorsuch scoffs, “It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

Other dissents make the majority’s work even easier. Justice Sonia Sotomayor thought that comparing earlier declined appeals would strengthen the dissent, but her argument actually reinforces the majority. She writes,

In truth, this case is easier than South Bay [May 29, 2020] and Calvary Chapel [July 24, 2020] While the state regulations in those cases generally applied the same rules to houses of worship and secular institutions [the executive order in Calvary Chapel compared the capacities of casinos and churches, allowing thousands into the former, while capping attendance at 50 for the latter!] where people congregate in large groups, New York treats houses of worship far more favorably than their secular comparators…. And whereas the restrictions in South Bay and Calvary Chapel applied statewide [emphasis added], New York’s fixed-capacity restrictions apply only in specially designated areas experiencing a surge in COVID–19 cases.

In fact, the California and Nevada governors’ restrictions were far more irrational than Cuomo’s. In Gavin Newsom’s California, churches were restricted to 25 percent of capacity or 100 persons, whichever was less, while a variety of commercial enterprises had no limits at all. In Nevada the same restrictions applied to rural Nevada as to Las Vegas. An exasperated Justice Alito exclaimed in his Calvary Chapel dissent (joined by Thomas and Kavanaugh), “The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance.” (Much of the substance of his Federalist Society speech, the object of ignorant ire by leftists, was drawn from this dissent.) Calvary Chapel was also an occasion for another Gorsuch dissent and riposte: “… there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

This is the bureaucratic world created by despotic rulers. Ironically, Cuomo dismissed the Court’s order as “philosophy and politics.” What happens to religious liberty ought to be a warning concerning liberty overall. Once Americans disdain religious liberty their love of liberty in general will fade, for they will hold nothing dear, having nothing to die for. The riches Americans covet will not justify self-sacrifice.

Whether an America First jurisprudence might be successful will depend a great deal on whether the new Court majority is willing to junk its conventional characterization of legal analysis (e.g., “textualism”) and, at its most sublime, adopt the founders’ respect for natural rights, the notion that every American owns himself. 

The Court is in the best position of its history, since before Dred Scott, to do this. That such an enlightened, rational rethinking of the meaning of legitimate power came about through embrace of religious liberty underscores America’s rootedness in the Declaration of Independence, with its unity of theology and political philosophy. Were the argument and action to unfold in this way it would be a great refounding moment for America.

About Ken Masugi

Ken Masugi, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Tetra Images/Getty Images

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