Short thread on Cuomo case at the Court yesterday, with some history: (1) the per curiam opinion doesn't even try to do the necessary public health analysis; there is only a spurious shifting of the burden to the state and then a change of the subject (per curiam, pp. 5-6). 1/6
What does it even mean that per curiam and concurrences make snide comparisons to liquor stores and bike shops w/o even taking up the state’s (and the dissenters’) straightforward observation that the public health considerations in such settings are so obviously different? 2/6
The Gorsuch concurrence brings ongoing right-wing attack on key 1905 public health case Jacobson v. Massachusetts into U.S. Reports. As the CJ points out, no one else is talking about Jacobson. (FWIW, Jacobson did not involve "a pandemic,” though it was an epidemic case.) 3/6
“[W]e may not shelter in place when the Constitution is under attack. Things never go well when we do.” What on earth is this? Gorsuch’s swipe at school shooting victims aside, things famously have also gone badly when the least powerful branch overrides elected branches. 4/6
25 years ago, the late Justice Scalia announced memorably that constitutional law was “a Kulturkampf” – now his successors apparently just pick up the cudgels to have at it, no labeling required. 5/6
Crucially: the departure from history is not the fact of pandemic regulations on churches; those are age-old. The novelty in our time is the judicial reversal thereof -- and the disempowerment of the state to meet the imperatives of the situation. 6/6 (Happy Thanksgiving!)
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