Is the Supreme Court a COVID Super Spreader?

Tommy Tuberville is the new Senator-elect from Alabama and former Auburn football coach; in an interview, defined the three branches of government as the President, the Senate and the House of Representatives instead of the Executive, the Legislative and the Judiciary.

The most controversial and impactful “legislative” policy changes are made by the judiciary, not the Congress, the Supreme Court of the United State, aka, SCOTUS, has become a legislative branch of government.

 The Court receives approximately 7,000-8,000 petitions for a writ of certiorari, requests for judicial review, each Term. The Court grants and hears oral argument in about 80 cases, one percent of petitions requesting review.

The Justices use the “Rule of Four” to decide if they will take the case. If four of the nine Justices feel the case has value, they will issue a writ of certiorari.

Wednesday night the Court released a decision, without oral argument, overturning lower court decisions dismissing Governor Cuomo’s restrictions on the number of participants in religious services in the most COVID contagious zones. The restriction had already been eased due to declining COVID rates. The Court insisted on issuing a decision overturning over 100 years of the Court supporting health care experts.

The unsigned decision was probably written by the latest Trump appointee, Justice Barrett


There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” …. If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.

Finally, it has not been shown that granting the applications [overturning the Cuomo restrictions] will harm the public. As noted, the State has not claimed that attendance at the applicants’ services has resulted in the spread of the disease. And the State has not shown that public health would be imperiled if less restrictive measures were imposed. Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.  Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.

From Dr Fauci to Dr Brix to every leading health care expert  COVID is spread through contact in enclosed spaces for lengthy periods of time, i. e., religious services.  The Court argues super spreading events must infect before the government can take actions to prevent massive contagion. Body counts must precede skipping communion or Sabbath prayers,

Another Trump appointee in a snarky concurrence,

Justice Gorsuch concurring,

according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, . Who knew public healthwould so perfectly align with secular convenience?

I “pick up a bottle of wine” at the door of my liquor store, no admittance into the store, I drop off my bike at the entrance to my bike repair store.

Is it acceptable to allow thousands of Hassidim, an ultra orthodox branch of the Jewish faith to attend a wedding, hours chanting prayers in a confined space?

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

No, this is the Gorsuch’s interpretation of the First Amendment, and totally without merit.

Do electeds have the authority to bar super spreader events?  We would hope so …

In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.

Justice Sotomayor, joined by Breyer and Kagan, dissents.

Unlike religious services, which “have every one of th[ose] risk factors,” bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. (“Epidemiologists and physicians generally agree that religious services are among the riskiest activities”). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.


In Jacobson v Massachusetts  (1905) SCOTUS affirmed the right of a city to require a smallpox vaccination in the midst of an epidemic, the penalty was a fine. The Court supported the decision, affirming the concept of following the authority of local health authorities.

 To invest such a body [Board of Health] with authority over such matters was not an unusual nor an unreasonable or arbitrary requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.  …  if we are to attach any value whatever to the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety.

Jacobson v Massachusetts has been mentioned in over 60 SCOTUS decisions since 1905. The “police powers” of the government to protect the health and safety of the nation has been firmly embedded for over 100 years, until the new Court majority, in a tortured argument; an absurd argument, finds the First Amendment trumps protecting the nation.

The five justices affirming the decision define themselves as “originalists,” Court decisions should reflect “what those who wrote the Constitution most likely thought about the content and scope of the constitutional phrase.”  Unless Barrett, Gorsuch and their con-freres have a Ouija Board I doubt they can mine the thoughts of Madison and Hamilton.   

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise …the actions of Governor Cuomo do not “prohibit the free exercise” of religion, in fact, his actions are complying with “expert opinions of health officials”

Pope Francis, in an op ed in the New York Times wrote,  governments have made great efforts to put the well-being of their people first, acting decisively to protect health and to save lives. 

2 responses to “Is the Supreme Court a COVID Super Spreader?

  1. Prof Asher J Matathias

    Why is anybody perplexed by this turn of events in a malignant Trump Administration? Those mentioned, including the new majority on the Supreme Court are imbued with ignorance-intolerance-bigotry! The results, until January 20, 2021, are inexorable!


  2. Pingback: The Supreme Court (hopefully) Learns from the Wisdom of the American People | Ed In The Apple

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