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
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.
Apparently, some people think that the GOP’s “big beautiful bill” is a foregone conclusion, and that the struggle over the budget and Trump’s agenda is over and done. Not true. On Sunday night, the bill — given the alternate name “Big Bad Bullsh*t Bill” by the Democratic Women’s Caucus — was voted out of the House Budget Committee. The GOP plan is to pass this legislation in the House before Memorial Day. But that’s not the end of it. As Jessica Craven explained in her Chop Wood Carry Water column: “Remember, we have at least six weeks left in this process. The bill has to: Pass the House, Then head to the Senate where it will likely be rewritten almost completely, Then be passed there, Then be brought back to the House for reconciliation, And then, if the House changes that version at all, Go back to the Senate for another vote.” She adds, “Every step of that process is a place for us to kill it.” The bill is over a thousand pages long, and the American people will not get a chance to read it until it has passed the House. But, thanks to 5Calls , we know it includes:
Let's talk about our Eastern Shore Delegation, the representatives who are supposed to fight for our nine Shore counties in Annapolis, and what they actually got up to this session.
For the first time in recent memory, Virginia Democrats have candidates running in all 100 House of Delegates districts — a milestone party leaders and grassroots organizers say reflects rising momentum as President Donald Trump’s second term continues to galvanize opposition.
The 447th legislative session of the Maryland General Assembly adjourned on April 8. This End of Session Report highlights the work Shore Progress has done to fight for working families and bring real results home to the Shore. Over the 90-day session, lawmakers debated 1,901 bills and passed 878 into law. Shore Progress and members supported legislation that delivers for the Eastern Shore, protecting our environment, expanding access to housing and healthcare, strengthening workers’ rights, and more. Shore Progress Supported Legislation By The Numbers: Over 60 pieces of our backed legislation were passed. Another 15 passed in one Chamber but not the other. Legislation details are below, past the budget section. The 2026 Maryland State Budget How We Got Here: Maryland’s budget problems didn’t start overnight. They began under Governor Larry Hogan. Governor Hogan expanded the state budget yearly but blocked the legislature from moving money around or making common-sense changes. Instead of fixing the structural issues, Hogan used federal covid relief funds to hide the cracks and drained our state’s savings from $5.5 billion to $2.3 billion to boost his image before leaving office. How Trump/Musk Made It Worse: Maryland is facing a new fiscal crisis driven by the Trump–Musk administration, whose trade wars, tariff policies, and deep federal cuts have hit us harder than most, costing the state over 30,000 jobs, shuttering offices, and erasing promised investments. A University of Maryland study estimates Trump’s tariffs alone could cost us $2 billion, and those federal cuts have already added $300 million to our budget deficit. Covid aid gave us a short-term boost and even created a fake surplus under Hogan, but that money is gone, while housing, healthcare, and college prices keep rising. The Trump–Musk White House is only making things worse by slashing funding, gutting services, and eliminating research that Marylanders rely on. How The State Budget Fixes These Issues: This year, Maryland faced a $3 billion budget gap, and the General Assembly fixed it with a smart mix of cuts and fair new revenue, while protecting working families, schools, and health care. The 2025 Budget cuts $1.9 billion ($400 million less than last year) without gutting services people rely on. The General Assembly raised $1.2 billion in fair new revenue, mostly from the wealthiest Marylanders. The Budget ended with a $350 million surplus, plus $2.4 billion saved in the Rainy Day Fund (more than 9% of general fund revenue), which came in $7 million above what the Spending Affordability Committee called for. The budget protects funding for our schools, health care, transit, and public workers. The budget delivers real wins: $800 million more annually for transit and infrastructure, plus $500 million for long-term transportation needs. It invests $9.7 billion in public schools and boosts local education aid by $572.5 million, a 7% increase. If current revenue trends hold, no new taxes will be needed next session. Even better, 94% of Marylanders will see a tax cut or no change, while only the wealthiest 5% will finally pay their fair share. The tax system is smarter now. We’re: Taxing IT and data services like Texas and D.C. do; Raising taxes on cannabis and sports betting, not groceries or medicine; and Letting counties adjust income taxes. The budget also restores critical funding: $122 million for teacher planning $15 million for cancer research $11 million for crime victims $7 million for local business zones, and Continued support for public TV, the arts, and BCCC The budget invests in People with disabilities, with $181 million in services Growing private-sector jobs with $139 million in funding, including $27.5 million for quantum tech, $16 million for the Sunny Day Fund, and $10 million for infrastructure loans. Health care is protected for 1.5 million Marylanders, with $15.6 billion for Medicaid and higher provider pay. Public safety is getting a boost too, with $60 million for victim services, $5.5 million for juvenile services, and $5 million for parole and probation staffing. This budget also tackles climate change with $100 million for clean energy and solar projects, and $200 million in potential ratepayer relief. Public workers get a well-deserved raise, with $200 million in salary increases, including a 1% COLA and ~2.5% raises for union workers. The ultra-wealthy will finally chip in to pay for it: People earning over $750,000 will pay more, Millionaires will pay 6.5%, and Capital gains over $350,000 get a 2% surcharge. Deductions are capped for high earners, but working families can still deduct student loans, medical debt, and donations. This budget is bold, fair, and built to last. That’s why Shore Progress proudly supports it. Click on the arrows below for details in each section.
