Midnight at SCOTUS: Roberts v. Kavanaugh

[It is Supreme Court related, but separate, and also was reported earlier so will note this here.  Checking to see if the Twitter related executive order, previously referenced, I saw that Virginia Thomas was nominated  to the Library of Congress Trust Fund Board.  Did not see it referenced by various Supreme Court reporters I keep track of, but did send a notice to the SCOTUSBlog morning wrap-up person.  Don't know if other justices' wives had such a role in the past.  Seems notable at least.  More so her role in personally associating with Trump to try to get rid of "snakes" not appropriately loyal to his Administration.] 

I started a thing in the middle of last year where I take off from tweeting during the weekend so signed off shortly before midnight.  Supreme Court orders/opinions on Monday, set of primaries (if not quite enough to get Biden over the hump) on Tuesday and likely some other stuff.

Well, apparently, could have just kept on.  The protests touched upon previously continued to have new wrinkles.  And, the Supreme Court decided to drop another order involving a request to allow a California church this Sunday to not follow limits in place -- to quote the summary, "to hold services, as long as they limit attendance to 25 percent of their building capacity or a maximum of 100 people and practice social distancing."  The Supreme Court early evening rejected another Illinois request, noting the rules had change and they could challenge them.  Likewise, it rejected a prisoner request, noting that there was a grievance system in place that should be processed promptly.

The Supreme Court only dealing with one of the church challenges might have been a red flag to those who keep careful track of such things. The whole thing here has inside the cathedral flavor to it.  The late order isn't on the "orders page" but only the lesser known "opinions related to orders."  Yes, here there were opinions related to the denial, but there tends to be a regular order (such an order list but also some stand alone denial) and separate separate order in that section.  I have seen, for some reason, not done some in the last year or so.  Not doing a "deep dive," it is not clear to me if this is just a new policy or some message is being sent. 

More importantly, Roberts concurring separately at all is notable, more so here.  He was not only the fifth vote to block the injunction, but was making a point regarding providing discretion during the pandemic (note how he consistently rejected special dispensation in cases involving voting rights, prisoners and churches).  The citation of the 1980s Garcia case might be telling too --  that is a federalist battle cry and he cited the majority as a sign that the courts should give states discretion to make policy.  This would be especially case as governments were addressing ever changing facts on the ground, highlighting the lethal nature of the virus etc. (he did not quite RBG's dissent in the Wisconsin case though).*  Let's see how he votes in June cases.

Alito did not join the Kavanaugh dissent though dissented from the denial.  Alito has over the years shown some consistency regarding free exercise claims, even giving a religious angle to a stun gun case (less lethal/can appeal to people on morally; I actually send him a letter to thank him though unlike Sotomayor, he didn't reply).  And, Alito was wise to do so since the dissent was based on this assertion: "The  Church has agreed to abide by the State’s rules that apply to  comparable  secular  businesses."

This has been addressed a couple times on this blog and one wonders if  Kentucky, e.g., will have grounds get a second bite of the apple.  SCOTUSBlog summarizes how the state here pointed out that a church service is not like a store:

California (along with San Diego County) and Illinois urged the justices to deny the churches’ requests. They began by explaining that indoor worship services are different from retail stores or businesses because people are more likely to gather in close proximity for longer periods of time. Moreover, they added, the singing and speaking at worship services “increases the danger” that people who are infected with the COVID-19 virus will “project respiratory droplets that contain the virus,” passing the infection on to others. Indeed, they noted, there have been several examples of significant COVID-19 outbreaks linked to worship services.

The Trump Administration has been reported to be especially concerned about singling out religious services here for understandable reasons given their base. The concerns for choirs specially were flagged in a recent article.  Religious liberty does at times require care but that is a two-way street as well.  To quote the end of Roberts' concurrence: "The  notion  that  it  is  “indisputably clear”  that  the  Government’s limitations are  unconstitutional  seems quite improbable."

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* Roberts cited the Jacobson v. Massachusetts case as well as one from 1970s, involving denying a drug rehabilitation alternative if the person was guilty of two felonies. That opinion had three dissenters but this quite quotable bit, which Roberts took the first part of:

When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad, and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices.

The provision there was thus upheld in each of the courts for which a challenge was brought. The dissent has some bite on the facts though this part also shows it was coming from a mindset just not prevalent at the time: "we must be mindful that the growing concern with treatment of narcotics addicts has not arisen in a legal vacuum, but has paralleled a growing awareness of the Eighth Amendment questions raised when criminal punishment is imposed for activities which are the symptom or direct product of the disease of narcotics addiction." The oral argument also flagged that prisoners also received some drug treatment too. 

It should be noted all cases here are not the same. The Wisconsin voting rights case was not necessarily rightly decided because Roberts was consistent.  And, applying the rules there with special actions taken given the situation, is different too since here we have state rules that are being challenged.  There, we had a claim a federal judge overreached by providing special actions to deal with the situation.