The High Court of the Kingdom of Gilead

So, like a corrupt politician seeking to keep a corrupt action out of the news cycle, late Friday night the Supreme Court handed down a decision that has no basis in precedent or original intention. It will kill people.

In a 6-3 decision, the Supreme Court decided that two southern California churches need not abide by state restrictions on indoor services until all appeals of the case are done, which will be long after the churches have spread the virus hither and yon, leading to many deaths. Amy Howe has a discussion of the decision over at SCOTUSblog, but I want to talk more about the thinking of the justices and the decision’s implications for US law.

The decision is incoherent. The Court’s conservative justices are in disagreement over its rationale. There are three different opinions in support of the decision: Thomas, Gorsuch, and Alito; Alito alone; and Barrett and Kavanaugh. Roberts, though sympathetic to the conservatives, sided with the liberals, commenting that the Court should respect public health officials. Reading this another way, there is no compelling legal argument to support the decision; the Court’s right wing simply decided they wanted to rule in favor of the religious plaintiffs and came up with multiple rationalizations for their rulings.

Kagan wrote a scathing dissent joined by Breyer and Sotomayor pointing out that the right wing had overridden the experts on the matter and also that the incoherence of the order undermines the rule of law; state policymakers will be guessing as to how the Court will rule on public health matters in the future.

As usual with the Roberts Court, the law is the loser. I am left thinking that if Jesus were brought before this Court he would be handed over to Pilate.

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As to the implications, I think this decision and the previous Roman Catholic Diocese of Brooklyn v. Cuomo indicate that the Court’s right wing will reliably rule in favor of radical-right Christian churches whenever the conservative justices feel it is possible, regardless of prior precedent or original intent. This is horrific. We do not know what abuses the Court’s conservatives will sanction. The depths of the Pit are the limit; they have after all sanctioned the spreading of a deadly disease.

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This is the high court of the Kingdom of Gilead.