Thread by @mjs_DC

Kagan:

"I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors."

Kagan, joined by Sotomayor and Breyer, dissented from the Supreme Court's order tonight lifting COVID restrictions on California churches. It is an extraordinary opinion.

"The Court injects uncertainty into an area where uncertainty has human costs."

supremecourt.gov/opinions/20pdf…

Gorsuch comes out with another "I know more about COVID than public health officials" opinion, this time castigating California for letting "Hollywood" hold singing competitions while banning indoor church services. Also, COVID restrictions are a tyrannical partisan fraud.

These are Amy Coney Barrett's first published words as a justice.

Joined by Kavanaugh, she took the "moderate" position by endorsing all of Gorsuch's (quite extreme) attacks of the California COVID restrictions, minus the singing ban. supremecourt.gov/opinions/20pdf…

Roberts holds the line on general deference to COVID restrictions while concluding that California's total ban on indoor church services goes too far. I guess we can call him the "fourth most liberal justice" now? 🥶 supremecourt.gov/opinions/20pdf…

Tonight, five justices—Gorsuch, Thomas, Alito, Kavanaugh, Barrett—endorsed the proposition that if the government gives an exemption to ANY secular business or activity, it MUST give that exemption to religious establishments and religious activity. supremecourt.gov/opinions/20pdf…

Five justices endorsed the "most favored nation" theory of free exercise—that the presence of ANY secular exemption to a law triggers strict scrutiny when that law is applied to religious exercise. This is basically the end of Employment Division v. Smith.

https://twitter.com/mjs_DC/status/1357912912644501504?s=20

As @steve_vladeck points out, the conservative justices are not even pretending to treat this like an emergency order with a high standard for relief. No balance of the equities. Just a decision on the merits. I guess this is how SCOTUS makes law now.

https://twitter.com/steve_vladeck/status/1357912531990413315

Employment Division v. Smith is a landmark precedent on free exercise. It says that if a law burdens religion, BUT it is neutral and generally applicable, that burden doesn't trigger strict scrutiny. Which means it's probably going to get upheld because it'll pass rational basis.

Today's conservatives hate Employment Division v. Smith because they want to strike down all kinds of restrictions on religion that pass rational basis. So they've created a new rule that a law automatically stops being neutral toward religion if it has ANY secular exemption.

Over the course of COVID emergency orders, we've seen Gorsuch, Thomas, Alito, and Kavanaugh endorse this new test. Tonight, Barrett signed on. So it's pretty clear SCOTUS' new majority is ready to take down Smith and turbocharge "religious liberty."

https://twitter.com/mjs_DC/status/1357916342192648193?s=20

(Congress can add four seats to the Supreme Court right now)

One last quote from Kagan’s dissent tonight, aimed at Gorsuch: “It is alarming that the Court second-guesses the judgments of expert officials ... In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.” supremecourt.gov/opinions/20pdf…