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The Supreme Court Emerges as a Microcosm of America

A decision about restricting religious services offers a window into the two tribes competing for dominance in the country today

Liel Leibovitz
November 26, 2020

Supreme Court decisions rarely make for page turners, but the one handed down last night, siding with Jewish and Catholic groups opposing the draconian restrictions placed on religious services by New York Gov. Andrew Cuomo, is an exception. In just 33 pages, the highest court in the land gave us a thrilling study in how the two tribes that compete for dominance in our ravaged America approach the world.

First, and briefly, the victors. The five majority justicesClarence Thomas, Samuel A. Alito, Neil M. Gorsuch, Brett M. Kavanaugh, and new member Amy Coney Barrettdispensed with the notion that the observant Jews and Catholics who petitioned the court were somehow insufficiently zealous in guarding their communities against the pandemic or responsible somehow for its spread. “Not only is there no evidence that the applicants have contributed to the spread of COVID–19,” they wrote, “but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services.”

With that, they turned their attention to Cuomo, whose actions, they found, fell far short of sensible.

“The Governor,” wrote Justice Gorsuch, “has chosen to impose no capacity restrictions on certain businesses he considers ‘essential.’ And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. 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?”

Gorsuch’s logic isn’t hard to follow: If I am, at the moment, free to amble into the wine shop on the corner, chat amiably with Damien behind the counter about the Mets and the latest shipment of Bandols, and take as much time as I’d like fondling Montsants, I should be able to dive into the comparably sized shtiebl two blocks down and pray Mincha. To argue that I may not, Gorsuch concluded, “is exactly the kind of discrimination the First Amendment forbids.”

And the First Amendment, the majority justices remind us, matters. “It is time,” concluded Gorsuch, “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.” Amen.

So, that’s one side.

On the other, we have, first, Chief Justice Roberts.

“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” he wrote, acknowledging the argument of the religious groups. “And it may well be that such restrictions violate the Free Exercise Clause. It is not necessary, however, for us to rule on that serious and difficult question at this time.”

Why shouldn’t the court intervene in the case of an irrational and unlawful government overreach that may, uh, violate the Constitution? Cementing his self-styled reputation as the Mensch on the Bench, Roberts seemed to care less for the principles at play and more for appearing as the paragon of totally reasonable, very moderate, way trustworthy insider. There really wasn’t a problem, he wrote, because Cuomo—facing heavy criticism—had already changed the rules and dialed down some of the strictest restrictions, and if he changed them again the Jews and the Catholics were welcome to once again embark on the pleasurable and monthslong path of appealing to the court anew. (Gorsuch had already dismissed this argument when he wrote that the court may not “discount the burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services.”)

All this muddle-mindedness took Roberts two paragraphs. Then, it was on to what really mattered: calling his colleagues to task for criticizing him by offering a long, tedious, and semantic breakdown of one relatively minor point. In 2020, sadly, it is not surprising to find a liberal assign more weight to wording than to ideas, but to see the chief justice offer nothing by way of an actual legal stance was dispiriting.

Roberts was echoed by Justices Kagan and Sotomayor, in their own dissent.

“JUSTICE GORSUCH,” they wrote, “does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.”

Like Beetlejuice, these medical experts, once conjured, take utter and absolute precedence and dominance over any and all. Having been credentialed, they may, say, argue that because racism is also a pandemic, mass protests are fine while plain masses, the Catholic kind, aren’t. They override the Constitution, and it is a Supreme Court justice’s sacred duty to remind us that once an MD from Johns Hopkins cites an opinion, Messrs. Jefferson, Hamilton, Adams, Franklin, Madison, and Washington better listen. And how precisely might those same medical experts justify the notion that stores remain open and unfettered, permitting the same crowds to gather in similarly sized spaces?

Kagan and Sotomayor don’t answer. They don’t have to, for they’ve one more argument to present. It’s the one that ends all dissent in progressive circles these days, so forceful and unimpeachable is its logic. It is this: Donald Trump is evil.

“Just a few Terms ago,” wrote Kagan and Sotomayor, “this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a ‘Muslim Ban,’ originally conceived of as a “‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’” If the President’s statements did not show “that the challenged restrictions violate the ‘minimum requirement of neutrality’ to religion,”… it is hard to see how Governor Cuomo’s do.”

If you’re struggling to find any correlation between the two cases, don’t sweat it too much. The idea the two dissenting justices are promoting, put bluntly, is that because Orange Man Bad, we mustn’t worry too much about any infringements by other politicians, particularly handsome Democratic Emmy Award winners seriously considered as presidential candidates in 2024.

And so, here we are, America: Jews practicing Judaism are cheering on a decision that curbs the unconstitutional and anti-religious petty tyranny of a governor, a decision made possible in large part thanks to a justice, Amy Coney Barrett, appointed by a president many of their co-religionists spent the past four years calling a Nazi.

Even more disturbingly, though, today’s decision proves, if any further proof was needed, that the faithful are under attack. But it also showed that they’re newly capable of forming coalitions, however imperfect, with people who hold similar values; and that, in doing so, they’re emerging as our era’s chief defendants of America’s sacred ideals, first and foremost among them the freedom of religion. Their victory gives us all much for which to give thanks.

Liel Leibovitz is editor-at-large for Tablet Magazine and a host of its weekly culture podcast Unorthodox and daily Talmud podcast Take One. He is the editor of Zionism: The Tablet Guide.