True to his predecessor, the late Justice Scalia, Justice Gorsuch penned a hard-hitting concurrence to the Supreme Court’s 5-4 decision in Archdiocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020), published just before the Thanksgiving holiday. Notably, although the decision was 5-4, Chief Justice Roberts now seems willing to overturn Coronavirus restrictions on religious institutions, but apparently does not want to do so until the Court of Appeals first rules. I provide general commentary on the Court’s analysis in this post, and excerpts of Justice Gorsuch’s concurrence on my social media.
Although some of the application of doctrine in the concurrences is not explicitly stated, the justices’ analysis has clear implications for constitutional litigation in what may have been the blockbuster opinion of this term.
First, the capable of repetition yet evading review doctrine remains alive and well, both with Justice Gorsuch and on the Court as a whole. The Court refused to stand down just because Governor Cuomo loosened the Coronavirus restrictions during the pendency of the litigation. Courts generally reject attempts by litigants to moot issues by voluntary cessation of actionable conduct, and the Court applied that doctrine here and adjudicated the injunction on the merits.
Second, stare decisis has limits, particularly in evolving public policy issues. The Court again specifically refused to follow precedents established earlier in 2020 when Coronavirus was less understood. Those opinions specifically deferred to the executive given the limited information available at the time. Although these were hardly longstanding precedents, they suggest loosening of stare decisis in favor of a practical approach to constitutional litigation. In particular, now that effective Coronavirus safety measures are understood, and the churches and synagogues in New York have established a nearly perfect track record, previous decisions allowing stringent regulations were revisited and cast aside.
Third, and relatedly, although courts ordinarily defer to the executive in times of emergency, they draw the line when that authority is abused. Justice Gorsuch did not appreciate that liquor stores and casinos were open while places of worship were closed. Nor, apparently, did he approve of the Governor acting unilaterally. Although he did not address separation of powers explicitly, he mentioned the Governor’s unilateral action several times. Future cases will also show whether the Court’s rigorous scrutiny of Coronavirus measures will extend beyond establishments protected by the free exercise clause.
Fourth, the liberal wing of the Court has embraced a century-old case rejecting a substantive due process argument against compulsory vaccination during a smallpox epidemic. The substantive due process doctrine underpins liberal jurisprudence on other social issues. Both the conservative and liberal wings of the Court appear poised to reexamine the broader substantive due process doctrine in the context of the Coronavirus. Both sides risk creating dicta that could prove improvident in future litigation of unrelated issues.