The Ideological Status-Quo in Supreme Court COVID-19 Litigation

The Court has decided 16 cases on emergency application related to the COVID-19 restrictions with obvious battle lines drawn between the justices (the 16 cases is after removing cases that appeared before the Court twice).  The Court’s newest appointee, Justice Barrett, helped establish herself on the Court’s right with her first opinion in the COVID related case: South Bay United Pentecostal Church v. Newsom.

The ideological dimensions of COVID related cases are clear. The conservative position seeks more rights for prayer and fewer exceptions made in voting and prison related cases on the basis on the basis on impediments stemming from the possible spread of COVID. In fact, the Supreme Court’s opinions on these matters almost entirely fall neatly into these buckets of issue areas.

With only one exception, all of the Court’s COVID decisions stem from prayer, voting, and prison cases. The justices are and have been extremely consistent with their votes in these cases. Several justices have voted conservatively or liberally in all cases according to the coding design described above.  

Thomas, Alito, and Gorsuch only voted conservatively in the cases analyzed while Sotomayor and Ginsburg (prior to her passing) only voted liberally.

The language in the justices opinions underscores their stringent stances on this issue. In Roman Catholic Diocese of Brooklyn v. Cuomo, Justice Gorsuch declared, “Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available.” On the other end of the spectrum Justice Sotomayor wrote in the case Barnes v. Ahlman, “At the time of the District Court’s injunction, the Jail had witnessed an increase of more than 300 confirmed COVID–19 cases in a little over a month. The Jail, moreover, was well aware of the risk that the virus could spread rapidly through its congregate population and that addressing that risk would require certain precautionary measures.” 

The justices hold these positions steadfast as they do with many other issues facing the Court. With a 6-3 conservative majority now that Justice Barrett is participating in the Court’s decisions, the liberal end of the Court faces an uphill battle.  Since the ideological poles seem unlikely to move in this set of cases, the only chance the Court’s liberal wing has of winning these decisions, all of which were heard on emergency applications, is if both Justices Kavanaugh and Roberts vote alongside them. This has happened in this set of cases and may occur in some more, but we should not be deceived into thinking that a handful of anomalous cases makes the rule. Instead, expect more of the same with the Court’s conservative majority setting the standards moving forward.


Cross posted with The Juris Lab

On Twitter: @AdamSFeldman

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