A New Justice, A Different Court
John Christie • December 15, 2020
In a flurry of six separate opinions released close to midnight on Thanksgiving eve, the Supreme Court, by a vote of 5-4, enjoined one of New York’s public health measures aimed at containing the spread of covid-19. Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, Governor of New York.
Although the name of the newest Justice did not appear in any of the opinions, the vote of Amy Coney Barrett enabled the Court’s sudden shift in direction at a time when the impact of the coronavirus has reached new highs.
In two cases earlier this year, the Court, also by narrow 5-4 votes, was willing to defer to the efforts of governors to deal with an acute illness with no known cure, no effective treatment, and no vaccine that has killed thousands of people. South Bay United Pentecostal Church v. Gavin Newsom, Governor of California; Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada. The governors of California and Nevada had sought to limit attendance at religious services as one of a number of restrictions designed to lower the risk of covid-19 spread. In California, attendance at religious services was restricted to 25 percent of the building capacity or a maximum of 100 attendees — whichever was lower. In Nevada, the governor restricted services to a maximum of 50 people.
Justices Thomas, Alito, Gorsuch, and Kavanaugh all dissented, asserting that even a public health emergency “does not absolve us from our duty to defend the Constitution.” In their opinion, each of the governors’ orders treated houses of worship less fairly than they treated comparable secular gatherings and no “compelling justification” had been demonstrated for this difference in treatment. In the words of Justice Alito writing the principal dissent: “a public health emergency does not give governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.”
The current New York coronavirus regulations at stake in the new case differ from those enacted earlier by the governors of California and Nevada. They permit the New York governor to identify hot spots where covid-19 infection rates have spiked and to designate those hot spots as red zones, the immediately surrounding areas as orange zones, and the outlying areas as yellow zones, with the strictest restrictions in the red zones. Among other things, houses of worship in the red zones are limited to a gathering at any one time to the lesser of 10 people or 25 percent of capacity, with less strict limits in the other two zones. In October, the governor designated red, orange, and yellow zones in parts of Brooklyn and Queens.
Two different religious organizations filed suit in federal district court claiming that these local fixed-capacity restrictions violated their First Amendment rights. After receiving evidence and hearing witnesses, the district court concluded that the regulations were “crafted on science and for epidemiological purposes” and had, in fact, treated “religious gatherings … more favorably than similar gatherings.” As a result, the court declined to enter an injunction against the implementation of the state’s regulations. On appeal the Second Circuit also declined to prevent the operation of the state’s regulations pending the outcome of the litigation but placed the case on an expedited briefing and argument schedule.
The religious organizations then petitioned the Supreme Court to intervene and, by another 5-4 vote, the Court this time determined to issue an injunction prohibiting New York from enforcing its fixed-capacity zone restrictions while awaiting the Second Circuit’s decision, saying that “even in a pandemic, the Constitution cannot be put away and forgotten.” These restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty” while at the same time allowing people to go to places such as liquor stores and bicycle shops. In addition to the votes of Justices Thomas, Alito, Gorsuch, and Kavanaugh, the necessary fifth vote for this departure from the result reached in the two earlier cases was provided by the Court’s newest justice.
The four dissenting justices offered three different dissenting opinions. As seen by Justice Breyer, whether these restrictions violate the Constitution’s free exercise clause is “far from clear” and contrary to the lower court’s determination. “The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together” must be balanced against the First Amendment issues. For Justice Sotomayor, the majority ignores the conditions medical experts have found to facilitate the spread of covid-19, noting as well that the New York regulations were designed to apply only in specially designated areas experiencing a surge in covid-19 cases. In her opinion, the result reached by the majority plays “a deadly game in second guessing the expert judgment of health officials.” And the Chief Justice defended his other dissenting colleagues as not having “cut the Constitution loose during a pandemic” but rather as viewing “the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
The Court’s new majority eagerly champions the right to attend religious services as if the Constitution allows no other choice. It gives no deference to decision-making by public officials while at the same time making their own judgments about whether other, secular activities treated differently by covid-19 related restrictions presented health risks greater or lesser than religious services. In doing so, the decision flies in the face of conclusions made by the medical community about the relative risks of spread in different settings and does so at a time when state officials continue to scramble to cope with a new surge brought upon by a rising number of infections and overloaded hospitals.
John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Common Sense for the Eastern Shore
Megan Outten, a lifelong Wicomico County resident and former Salisbury City Councilwoman, officially announced her candidacy recently for Wicomico County Council, District 7. At 33, Outten brings the energy of a new generation combined with a proven record of public service and results-driven leadership. “I’m running because Wicomico deserves better,” Outten said. “Too often, our communities are expected to do more with less. We’re facing underfunded schools, limited economic opportunities, and years of neglected infrastructure. I believe Wicomico deserves leadership that listens, plans ahead, and delivers real, measurable results.” A Record of Action and A Vision for the Future On Salisbury’s City Council, Outten earned a reputation for her proactive, hands-on approach — working directly with residents to close infrastructure gaps, support first responders, and ensure everyday voices were heard. Now she’s bringing that same focus to the County Council, with priorities centered on affordability, public safety, and stronger, more resilient communities. Key Priorities for District 7: Fully fund public schools so every child has the opportunity to succeed. Fix aging infrastructure and county services through proactive investment. Keep Wicomico affordable with smarter planning and pathways to homeownership. Support first responders and safer neighborhoods through better tools, training, and prevention. Expand resources for seniors, youth, and underserved communities. Outten’s platform is rooted in real data and shaped by direct community engagement. With Wicomico now the fastest-growing school system on Maryland’s Eastern Shore — and 85% of students relying on extra resources — she points to the county’s lagging investment as a key area for action. “Strong schools lead to strong jobs, thriving industries, and healthier communities,” Outten said. “Our schools and infrastructure are at a tipping point. We need leadership that stops reacting after things break — and starts investing before they do.” A Commitment to Home and Service Born and raised in Wicomico, Megan Outten sees this campaign as a continuation of her lifelong service to her community. Her vision reflects what she’s hearing from neighbors across the county: a demand for fairness, opportunity, and accountability in local government. “Wicomico is my home; it’s where I grew up, built my life, and where I want to raise my family,” Outten said. “Our county is full of potential. We just need leaders who will listen, work hard, and get things done. That’s what I’ve always done, and that’s exactly what I’ll continue to do on the County Council.” Outten will be meeting with residents across District 7 in the months ahead and unveiling more details of her platform. For more information or to get involved, contact info@meganoutten.com
Way back in 1935, the Supreme Court determined that independent agencies like the Consumer Product Safety Commission (CPSC), the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) do not violate the Constitution’s separation of powers. Humphrey’s Executor v. United States (1935). Congress provided that the CPSC, like the NLRB and MSPB, would operate as an independent agency — a multi-member, bipartisan commission whose members serve staggered terms and could be removed only “for neglect of duty or malfeasance in office but for no other cause.” Rejecting a claim that the removal restriction interferes with the “executive power,” the Humphrey’s Court held that Congress has the authority to “forbid their [members’] removal except for cause” when creating such “quasi-legislative or quasi-judicial” bodies. As a result, these agencies have operated as independent agencies for many decades under many different presidencies. Shortly after assuming office in his second term, Donald Trump began to fire, without cause, the Democratic members of several of these agencies. The lower courts determined to reinstate the discharged members pending the ultimate outcome of the litigation, relying on Humphrey’s , resulting in yet another emergency appeal to the Supreme Court by the administration. In the first such case, a majority of the Court allowed President Trump to discharge the Democratic members of the NLRB and the MSPB while the litigation over the legality of the discharges continued. Trump v. Wilcox (May 22, 2025). The majority claimed that they do not now decide whether Humphrey’s should be overruled because “that question is better left for resolution after full briefing and argument.” However, hinting that these agency members have “considerable” executive power and suggesting that “the Government” faces greater “risk of harm” from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty,” the majority gave the President the green light to proceed. Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, asserting that Humphrey’s remains good law until overturned and forecloses both the President’s firings and the Court’s decision to award emergency relief.” Our emergency docket, while fit for some things, should not be used to “overrule or revise existing law.” Moreover, the dissenters contend that the majority’s effort to explain their decision “hardly rises to the occasion.” Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that Humphrey’s is no longer good law but if that is what the majority means, then it has foretold a “massive change” in the law and done so on the emergency docket, “with little time, scant briefing, and no argument.” And, the “greater risk of harm” in fact is that Congress provided for these discharged members to serve their full terms, protected from a President’s desire to substitute his political allies. More recently, in the latest shadow docket ruling in the administration’s favor, the same majority of the Court again permitted President Trump to fire, without cause, the Democratic members of another independent agency, this time the Consumer Product Safety Commission (CPSC). Trump v. Boyle (July 23, 2025). The same three justices dissented, once more objecting to the use of the Court’s emergency docket to destroy the independence of an independent agency as established by Congress. The CPSC, like the NLRB and MSPB, was designed to operate as “a classic independent agency.” In Congress’s view, that structure would better enable the CPSC to achieve its mission — ensuring the safety of consumer products, from toys to appliances — than would a single-party agency under the full control of a single President. “By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.” The dissenters also assert that the majority’s sole professed basis for the more recent order in Boyle was its prior order in Wilcox . But in their opinion, Wilcox itself was minimally explained. So, the dissenters claim, the majority rejects the design of Congress for a whole class of agencies by “layering nothing on nothing.” “Next time, though, the majority will have two (if still under-reasoned) orders to cite. Truly, this is ‘turtles all the way down.’” Rapanos v. United States (2006). * ***** *In Rapanos , in a footnote to his plurality opinion, former Supreme Court Justice Scalia explained that this allusion is to a classic story told in different forms and attributed to various authors. His favorite version: An Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant, he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies "Ah, after that it is turtles all the way down." John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Marylanders will not forget this vote.
More than 30,000 of our neighbors in Maryland’s first congressional district will lose their health insurance through the Affordable Care Act and Medicaid because of provisions in the GOP’s heartless tax cut and spending bill passed last week.
Right now, Congress is working on a fast-track bill that would make historic cuts to basic needs programs in order to finance another round of tax breaks for the wealthy and big corporations.
The House Agriculture Committee recently voted, along party lines, to advance legislation that would cut as much as $300 million from the Supplemental Nutrition Assistance Program. SNAP is the nation’s most important anti-hunger program, helping more than 41 million people in the U.S. pay for food. With potential cuts this large, it helps to know who benefits from this program in Maryland, and who would lose this assistance. The Center on Budget and Policy Priorities compiled data on SNAP beneficiaries by congressional district, cited below, and produced the Maryland state datasheet , shown below. In Maryland, in 2023-24, 1 in 9 people lived in a household with SNAP benefits. In Maryland’s First Congressional District, in 2023-24: Almost 34,000 households used SNAP benefits. Of those households, 43% had at least one senior (over age 60). 29% of SNAP recipients were people of color. 15% were Black, non-Hispanic, higher than 11.8% nationally. 6% were Hispanic (19.4% nationally). There were 24,700 total veterans (ages 18-64). Of those, 2,200 lived in households that used SNAP benefits (9%). The CBPP SNAP datasheet for Maryland is below. See data from all the states and download factsheets here.
