“…we may not shelter in place when the Constitution is under attack. Things never go well when we do.”
Justice Gorsuch in ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK v. ANDREW M. CUOMO, GOVERNOR OF NEW YORK. The Supreme Court has injuncted pending trial Cuomo’s executive order restricting religious observance in New York, noting that although the original order had been changed since the proceedings started (a device to make the litigation moot), that actually made it more important, as a defence against arbitrary state power.
Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.
The judgment of Gorsuch is full of robust language, such as:
It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.
Bear in mind that here, the Keep Britain Free judicial review was thrown out at the English High Court partly on the basis that by the time the court heard it, the restrictions had changed (whilst the power to impose them remained). This is now under (leisurely) appeal in the English Court of Appeal. How nice it would be to have an appellate court in the country that could produce such robust defences of liberty and the rule of law, e.g.
Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.
And a splendid dig:
Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise.
And this:
Nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights. In fact, Jacobson explained that the challenged law survived only because it did not “contravene the Constitution of the United States” or “infringe any right granted or secured by that instrument.” Id., at 25.
Tellingly no Justice now disputes any of these points. Nor does any Justice seek to explain why anything other than our usual constitutional standards should apply during the current pandemic.
Whilst the United States Supreme Court is so constituted, there is hope for the Republic, even though this was a 5-4 victory. Meanwhile in the UK, any hope of help from the courts is a deranged fantasy. But the courts may serve a purpose in demonstrating that point.