Years ago, when conservatives were unhappy about the influence of liberals on the United States Supreme Court, they complained bitterly about “activist judges.” They called for “judicial restraint,” urging justices on the high court to refrain from interfering excessively in public affairs. These complaints are rarely heard now that conservatives have a majority on the Supreme Court. In fact, conservatives often applaud when right-oriented justices make controversial rulings that overturn decisions by elected officials.
One of the most stunning examples of judicial overreach by conservatives occurred in a decision at the Supreme Court in November 2020. By a vote of 5-4 the conservative justices ruled against New York state’s efforts to limit religious gatherings in sections of New York City that had been troubled by high incidence of COVID infections. Strongly opinionated judgments by justices Neil Gorsuch and Brett Kavanaugh especially hinted that conservatives at the Court may soon overturn other efforts by government officials to protect public health.
“Activist Judges” is an appropriate label for Gorsuch and Kavanaugh. Their written opinions in the New York case represented stands in current political debates. Gorsuch and Kavanaugh attempted to demolish rationales used by Governor Cuomo and others in his state government. New York officials were struggling to protect the public during a fast-spreading pandemic. They established rules for large public gatherings based on recommendations by medical experts. Gorsuch and Kavanaugh overturned their decision by promoting a political argument favored by many conservatives. Gorsuch and Kavanaugh interpreted the New York state’s COVID restrictions as unconstitutional by claiming they established unfair limitations on religious liberty.
Gorsuch’s and Kavanaugh’s written judgments had the character of op-ed columns in the partisan media rather than thoughtful inquiries into significant constitutional issues. The justices tried to undercut the logic behind New York state’s actions. Gorsuch opined, “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 that public health would so perfectly align with secular convenience?” Kavanaugh added, “The State must justify why houses of worship are excluded” from liberties accorded to some businesses to continue operations during the pandemic.
Is it the job of Justice Gorsuch to act like final arbiter when public officials all over the nation are struggling to match conflicting goals? Those officials want to prevent the spread of the coronavirus and let citizens earn a living and engage in leisure activities. Efforts to find the right balance between these interests requires careful study and attention to local conditions. It involves complex decision-making. Is it not the job of Supreme Court justices to tell these officials how to deal with crowded gatherings in a health crisis.
It is surprising that these conservative justices interpreted the New York situation as an assault on religious liberty. The state’s management of the pandemic did not reflect intolerance toward religion. As Justices Sonia Sotomayor and Elena Kagan explained, religious groups were not being treated with specific prejudice in New York’s rules. Distinctions made by the state were based on the recommendations of scientists. Medical experts reported that “large groups of people gathering, speaking and singing in close proximity indoors for extended periods of time” can “facilitate the spread of COVID-19.” Sotomayor and Kagan pointed out, too, that “New York treats houses of worship far more favorably than their secular comparators” by “requiring movie theaters, concert venues, and sporting arenas subject to New York’s regulation to close entirely, but allowing houses of worship to open subject to capacity restrictions.”
During a time when complicated public health issues (including mask-wearing) are cannon fodder in the culture wars, the justices should not be acting like culture warriors. They should only get involved in COVID matters if some egregious violation of liberty and justice occurs. That kind of serious abuse was not at stake in the New York case. Yet five conservatives on the Court, Justices Thomas, Alito, Barrett, Gorsuch and Kavanaugh, chose to lecture government officials about governing during a pandemic. In doing so, the justices rejected science and invoked partisan talking points. The five conservatives chose to act like culture warriors. Their engagement as “activist judges” soiled the Court’s image of impartiality.
Decades ago, the brilliant Supreme Court justice Louis D. Brandeis said, “the most important thing we do is not doing.” Whenever possible, recommended Brandeis, “a statute should be construed in a way to avoid constitutional issues.” Brandeis encouraged the justices not to “formulate constitutional rules broader than required by the precise facts in the case.” Unfortunately, five conservatives on the Supreme Court took a different approach. In the New York case they engaged in a highly controversial form of judicial activism.
