by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Like numerous judges across the country for the past year, some justices on the U.S. Supreme Court appear unable to put aside their political views and question the legality of lockdown orders. That’s apparent in last week’s late-night decision in the ongoing battle between California’s churches and California Gov. Gavin Newsom. The order arose after Newsom ignored the Supreme Court’s prior decision that found bans on indoor worshipping to violate the First Amendment.
Just one week after the Supreme Court issued that decision, Newsom’s government issued a regional “stay at home” order that again banned all indoor church services during a sacred holiday season, but let grocery stores and large retailers like Costco and Best Buy stay open inside at 25 percent capacity. The order showed a shocking disregard for the law, particularly during the Holy Season and especially for a governor that has demanded complete fealty to his orders.
California must have known that it would be hauled back before the Supreme Court, and the court made it pay. Justice Neil Gorsuch’s plurality opinion hammered that point, saying: “Recently, this Court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution …. Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.”
Of course, one may expect such defiance from California politicians, whose state voted nearly two to one for Joe Biden over Donald Trump, but it is much scarier to see it come from three Supreme Court justices—Elena Kagan, Sonia Sotomayor, and Stephen Breyer—who discarded all respect for stare decisis and essentially accused their colleagues of killing people. …
… Sadly, Kagan’s dissent reflects a larger failure by the legal community during the COVID-19 pandemic: a failure to exercise any independent judgment or critical thought in the face of the greatest assault on civil liberties in modern American history.