Unable to attack the Conservatives at the Supreme Court on the facts, the New York Times The columnist expresses her own grievances.
The irony doesn’t seem to have risen on Linda Greenhouse as she typed her latest column, supposedly on Roman Catholic Diocese of Brooklyn v. Cuomo and curiously titled “Judge Amy Coney Barrett’s Choice.” You would think that Greenhouse, Pulitzer Prize-winning journalist and New York Times pillar, which has covered the Supreme Court for decades, would devote its time on the case to analyzing the per curiam, concurring and dissenting opinions expressed in the case. But Greenhouse did not want to tackle the facts and instead limited his discussion of the case to the following passage:
Judge Amy Coney Barrett had a choice.
She could provide the fifth Supreme Court vote that Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh needed – and would not have received from Judge Ruth Bader Ginsburg – to place a temporary block, in the name of religious freedom, on New York’s limitations linked to the pandemic of church and synagogue attendance.
Or she could give that precious fifth vote to Chief Justice John Roberts in the name of not only public health but judicial modesty as well, since the most severe restrictions complained of by Catholic and Jewish organizations are no longer in effect and the whole affair could well vanish into thin air if the Supreme Court just got hold of it.
Note the abstractions, which are a must for Greenhouse. As a judicial consequentialist, she is far more concerned with the success of the “blue team” than with proper application of the law. The petitioners in the case, a Catholic diocese and a Hasidic Jewish group, both had mandatory masks, participation limited to between 25 and 33 percent of capacity, and willingly complied with all other government guidelines. So they certainly did not question New York State’s ability to place all “Pandemic Limitations of Attendance at Churches and Synagogues.” No, what they were challenging was the disparate treatment of religious institutions versus secular institutions. While places of worship were limited to ten people in some areas (known as “red zones”) and 25 in others (“orange zones”), essential businesses located in red zones have had complete discretion over what to do. number of people who can be admitted. In the orange zones, the same discretion has been extended even to non-essential businesses.
The dominant opinion contests this double standard, concluding that “the applicants have clearly demonstrated that the impugned restrictions violate the ‘minimum requirement of neutrality’ with regard to religion.” And while the court recognizes that the government has a compelling interest in slowing the spread of COVID-19, it also points out that the limitations put in place on churches and synagogues “are much more restrictive than any COVID-related regulations that have already been adopted. before the Court, much stricter than those adopted by many other jurisdictions hard hit by the pandemic, and much more severe than what has been shown to prevent the spread of the virus in the applicants’ departments. In short, the restrictions are not sufficiently tailored to pass rigorous scrutiny and justify the “irreparable harm” caused to petitioners by denying them their First Amendment right to the free exercise of religion.
Heeding the arguments of the majority is not what Greenhouse set out to do, so they don’t even try to punch holes in the reasoning of opinion or amplify the message of the dissenting judges. Instead, she resorts to lazy assertions that she believes will appeal to her readership. According to Greenhouse, Judge Barrett, in signing her opinion, “chose to align with what I call grievance conservatism,” which she defines as conservatism “fueled by the belief that even when he wins, he loses and loses unfairly. “
Diocese c. Cuomo never returns to the room, as Greenhouse proceeds to voice his own grievances. Among other things, she challenges Judge Alito’s recent speech to the Federalist Society, a lawsuit challenging Kentucky Governor Andy Beshear’s attempt to ban in-person teaching in private and public schools through executive action. , and the recent trial of Judge Thomas. opinion regarding the denial of certiorari to Kim Davis. Faintly trying to reattach Barrett to the room, Greenhouse even wonders aloud if she would have signed Thomas’ missive had she been seated on the pitch in time.
That’s what Greenhouse gets paid for: flattering its readers with the idea that they are right and their opponents wrong, rather than providing a solid legal analysis. It’s ironic that someone we are supposed to respect as one of the country’s foremost legal commentators has chronicled the politics of Tory grievances – a phenomenon that surely exists, but not in the forms it does. she suggests – moaning instead of persuading. We should all be grateful that its own grievance policy is limited to Times, while the more thoughtful like Judge Barrett are seated on the bench.