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
At Shore Progress’s monthly meeting last week, the tension between national politics and local opportunity was on full display. With President Donald Trump escalating his attacks on offshore wind, representatives from US Wind and the Oceantic Network made their case directly to members gathered in Salisbury. From the outset, the presenters stressed the scale of what’s coming to the Eastern Shore. “This project is the equivalent of building two nuclear power plants off our coast,” US Wind representative Dave Wilson said, pointing to plans for 114 turbines and four offshore substations. Together, he said, the project will generate two net gigawatts of clean energy, enough to power approximately 26% of the homes in Maryland. The presentation walked members through the timeline: a four-phase buildout beginning in the southeast corner of the lease area, with each phase, including its own export cable, routed through Indian River Bay into the regional grid at the Indian River Power Plant in Delaware. Environmental safeguards on display Slides showed how US Wind plans to minimize negative effects on wildlife. The company will use an aircraft detection lighting system to keep turbines dark until a low-flying aircraft approaches, reducing night-sky light pollution. Marine protections include bubble curtains to dampen noise during pile driving, visual and acoustic monitoring for whales, and strict shutdown zones if animals enter construction areas. Lights will be on less than 1% of the time in any given year, underscoring their view that offshore wind can coexist with migratory birds, commercial fishing, and marine transit. Economic promise for the Shore The discussion turned quickly to what the project means locally. US Wind pledged hundreds of jobs for the Shore, with commitments to use union labor and partner with minority, women, and veteran-owned businesses. Officials noted that the Lower Shore Workforce Alliance has already received $700,000 from Maryland Works for Wind to build training programs, while community colleges are adjusting trade curricula to educate the next generation of turbine technicians. A planned operations and maintenance facility in West Ocean City will house technicians and crew transfer vessels, bringing steady employment and infrastructure investment to the harbor. A national fight with local stakes The meeting didn’t shy away from politics. Several members noted Trump’s repeated attempts to derail offshore wind projects including his latest push to revoke US Wind’s federal permit. US Wind officials acknowledged that such lawsuits could delay progress but insisted that the project’s federal approvals are on solid ground. “This is the Eastern Shore's moment,” Shore Progress Chair Jared Schablein said, referring to a slide that showed more than $815 million in offshore wind investments statewide. “The question is whether politics will slow us down, or whether we keep building for the Shore’s future.” The presentation had a clear message: Offshore wind is not just about clean power, but also about jobs, investment, and opportunity for Eastern Shore families. Jan Plotczyk spent 25 years as a survey and education statistician with the federal government, at the Census Bureau and the National Center for Education Statistics. She retired to Rock Hall.
Standing at the Legacy at Twin Rivers apartment community in Howard County, Maryland Gov. Wes Moore signed an executive order aimed at addressing his state’s deepening housing crisis. Titled Housing Starts Here, his order is designed to accelerate construction of affordable homes and cut through what Moore called years of “no and slow” decision-making in state housing policy. Maryland is facing a shortage of at least 96,000 housing units, according to state estimates, a gap that officials say has driven up prices, pushed families out of the state, and stifled economic growth. “Building pathways to wealth for Marylanders, creating jobs, attracting new businesses and residents, growing our economy, and securing our future all start with housing,” Moore said at the signing. “We need to be the state of yes and now.” Five guiding principles The executive order lays out five core priorities for state housing policy: Use state land for housing . Agencies must identify surplus properties and land near transit stations that can be converted into new housing developments. Cut red tape. State permitting processes will be streamlined, with new rules allowing third-party reviewers to accelerate approvals. Strengthen partnerships. A new State Housing Ombudsman will serve as a liaison to help coordinate projects between state agencies, local governments, and developers. Set clear goals. By January 2026, the state will publish housing production targets for each county and update them every five years. Incentivize affordable housing. Jurisdictions that meet housing targets or pass pro-housing policies will be recognized with new Maryland Housing Leadership Awards, making them more competitive for state funding. Speed as the priority State officials said the new framework is focused on cutting delays that can hold back projects for years. By digitizing applications, engaging multiple agencies simultaneously, and allowing outside reviewers, the state aims to expedite project completion while upholding environmental and community standards. What could this mean for us on the Eastern Shore? Moore acknowledged that housing affordability consistently ranks as Marylanders’ No. 1 concern. For young people in particular, high costs and long commutes are major reasons they leave the state. The order seeks to reverse that trend, tying housing growth to job creation and transit access. On the Eastern Shore , where rental availability and starter homes are limited, Moore’s order could open opportunities for mixed-use, transit-oriented projects on state-owned land, as well as accelerate approval for affordable housing initiatives backed by nonprofits and local developers. What comes next The Department of Housing and Community Development will publish the state’s first set of production targets by Jan. 1, 2026, followed by annual progress reports starting in 2027. Agencies have until March 2026 to implement many of the new permitting and funding acceleration rules. Moore framed the executive order as a generational investment. “Making housing more affordable is not just about building shelter, it’s about building a legacy,” he said.
Sen. Angela Alsobrooks (D-Md.) has intensified her calls for Health and Human Services Secretary Robert F. Kennedy Jr. to step down, releasing a detailed report that she says proves his tenure has been a disaster for American families. The first senator to demand Kennedy’s resignation in May, Alsobrooks joined Senate Finance Committee Ranking Member Ron Wyden (D-Ore.) in unveiling a 54-page report that chronicles what they describe as the “costly, chaotic, and corrupt” record of Kennedy’s first 203 days at the department. Released before Kennedy’s Senate hearing last week, the report outlines examples of alleged mismanagement for each day since he was sworn in on Feb. 13. “Robert Kennedy’s tenure as America’s chief health officer has been higher costs, more chaos, and boundless corruption,” Wyden said. “His actions are endangering children, leaving parents confused and scared, and forcing families and taxpayers to pay more for their health care.” Echoing that assessment, Alsobrooks cited testimony from scientists at the National Institutes of Health in Maryland who she says have watched critical cancer research grind to a halt under Kennedy’s leadership. “His actions are increasing Americans’ health care costs, causing chaos, and furthering the Trump administration’s endless stream of corruption,” she said. The report argues that Kennedy has: Driven up costs by backing the Trump administration’s budget plan, which Alsobrooks says strips health coverage from 15 million Americans while handing tax breaks to the wealthy and corporations. Created chaos by dismantling HHS programs, undermining research institutions, and promoting vaccine misinformation. Engaged in corruption by using the office to advance personal and family financial interests, particularly around limiting vaccine access. Public Citizen, a consumer advocacy group, praised Alsobrooks’ leadership. “President Trump and Senate Republicans made a grievous error when entrusting Kennedy with our nation’s health,” the group said in. “It is far past time that President Trump rectifies this error by firing Kennedy before more lives are unnecessarily put at risk.” Alsobrooks appeared on the Morning Joe TV show on to discuss the findings and to reiterate her demand that Kennedy resign or be removed. “This is about protecting families and protecting science,” she said. “Our nation’s health system cannot afford another day under Robert Kennedy’s reckless watch.” As a community organizer, journalist, administrator, project planner/manager, and consultant, Gren Whitman has led neighborhood, umbrella, public interest, and political committees and groups, and worked for civil rights and anti-war organizations.
Wicomico County leaders have announced plans to move forward with the federal government’s controversial 287(g) program, entering into an agreement with U.S. Immigration and Customs Enforcement (ICE) that would deputize local officers to serve immigration warrants inside the county jail. Under the model selected, known as the Warrant Service Officer program, specially trained deputies at the detention center would be allowed to serve civil immigration warrants on individuals already in custody. County Executive Julie Giordano and Sheriff Mike Lewis emphasized that deputies would not conduct street-level immigration enforcement. “Public safety is our top responsibility,” Giordano said. “The Warrant Service Officer program provides our sheriff’s office with the tools they need to address individuals already in custody who may pose a risk to our community at no additional cost to the county.” Lewis added that the program “gives our deputies the ability to safely and lawfully carry out their duties while ensuring that Wicomico County remains a secure place to live, work, and raise a family.” Community pushback The announcement drew swift opposition from civil rights and community organizations, including the ACLU of Maryland, the Wicomico NAACP, and local grassroots groups such as Crabs on the Shore, who have warned that the agreement will harm immigrant families, sow fear, and erode trust between residents and law enforcement. Opponents also criticized the process, arguing that the decision was rushed through without meaningful public input despite repeated calls for hearings. “This is being framed as an administrative detail, but it has huge consequences for our neighbors,” one advocate said. Concerns about cost and precedent Supporters of the WSO model have emphasized that the partnership comes “at no additional cost” to Wicomico taxpayers, but critics point out that other jurisdictions have found otherwise. Anne Arundel County canceled its own 287(g) agreement, citing high costs and community backlash. The Camden Police Department in Delaware withdrew from a similar partnership after public protests in May. Advocates note that the federal government does not fully reimburse counties for the time, training, and legal exposure associated with 287(g) programs, leaving local taxpayers to shoulder hidden expenses. First on Delmarva If finalized, Wicomico County would become the first government or police agency on the Delmarva Peninsula to formally enter into a 287(g) agreement with ICE. Supporters say that distinction demonstrates a commitment to accountability and public safety. Opponents warn it risks branding the county as hostile to immigrant communities that have long been central to the Shore’s workforce, particularly in poultry processing and agriculture. The county’s decision comes amid a broader national debate about local involvement in federal immigration enforcement, with critics warning that partnerships like 287(g) make communities less safe by discouraging victims and witnesses from coming forward. For now, the final agreement is pending federal approval. But with strong opposition already mobilized, the fight over Wicomico’s new partnership is likely only beginning.
Wicomico County Republicans have moved forward with an agreement to join the federal 287(g) program, aligning the county with the U.S. Immigration and Customs Enforcement (ICE). County Executive Julie Giordano and Sheriff Mike Lewis are backing the program to train county officers at the detention center to help ICE identify non-citizens for deportation proceedings. The agreement has triggered strong pushback from immigrant advocates, civil rights groups, and community leaders who warn that this partnership will erode trust between residents and law enforcement, risk racial profiling, and allot local tax dollars to assist federal immigration enforcement. Yet amid the growing controversy, the Wicomico County Democratic Central Committee has issued no response to the ICE agreement, even as residents voice frustration that the Democratic establishment’s silence has ceded the conversation to Republicans. Moreover, the Central Committee has remained silent with regard to recent comments by Democratic Councilwoman April Jackson, who told the Washington Post that the poultry industry should reduce its reliance on immigrant workers. Jackson also said, “a lot of Americans aren’t employed because the Haitians are taking our jobs.” Jackson’s remarks have drawn widespread criticism from immigrant advocates. For many residents, the Democratic leadership’s silence is as much of a concern as the county government’s new partnership with ICE. As the county waits for federal approval of the 287(g) agreement, the absence of a Democratic counterweight has left immigrant families and community organizers to carry the opposition on their own.
With speculation mounting that Delegate Sheree Sample-Hughes (D-37A) may run for County Executive for Wicomico County in 2026, the longtime Eastern Shore lawmaker will headline a Community Conversation in Dorchester County on Sept. 17 at 6 pm. Sponsored by the Eastern Shore Democrats, the event will give residents the opportunity to hear Sample-Hughes speak about local priorities — schools, public safety, health care access, and economic development in the mid-Shore. Sample-Hughes, former Speaker Pro Tem of the Maryland House of Delegates, has represented portions of Wicomico and Dorchester counties for more than a decade. Her record includes bipartisan work on district projects, as well as efforts to expand health services and invest in infrastructure. Although organizers emphasize that the Sept. 17 gathering is not a campaign event, the timing has fueled interest. Political observers note that any appearance by Sample-Hughes will be closely watched as Democrats weigh potential challengers for County Executive in the upcoming cycle. The forum will include remarks from the delegate, followed by a question-and-answer session. Seating is available first-come, first-served and residents from across the Shore are encouraged to attend. Key details What: Community Conversation with Del. Sheree Sample-Hughes When: Sept. 17, 6 pm Where: Dorchester County, venue to be announced by organizers. Format: Remarks followed by audience Q&A Before her election to the House of Delegates, Sample-Hughes served on the Wicomico County Council. Should she enter the county executive race, many believe she would be a serious challenger to Republican incumbent Julie Giordano.
