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Justice Sotomayor Upbraids SCOTUS Majority for ‘Playing a Deadly Game’ With COVID Restrictions

U.S. Supreme Court Justice Sonia Sotomayor issued a stinging rebuke of her conservative colleagues, calling out what she perceived as hypocrisy and false equivalencies in Wednesday’s ruling against New York Governor Andrew Cuomo’s COVID-19 restrictions.

In a 5-4 decision, the court’s conservative block of justices granted a temporary injunction requested by a Catholic Diocese and two Orthodox Jewish synagogues. By so doing, the court narrowly held that Cuomo’s regulations limiting attendance at religious services likely violated the Free Exercise Clause of the First Amendment. It was the court’s first major decision since the staunchly conservative Justice Amy Coney Barret joined the bench.

Sotomayor was having none of it.

“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,” the Barack Obama-appointed liberal justice wrote.

Sotomayor pointed out the false comparisons at the heart of the religious institutions’ arguments which compared brief shopping trips to attending indoor religious services, a mistake she said was repeated by Justice Neil Gorsuch’s concurrence to the court’s per curium order.

“Undeterred, Justice Gorsuch offers up his own examples of secular activities he thinks might pose similar risks as religious gatherings, but which are treated more leniently under New York’s rules (e.g., going to the liquor store or getting a bike repaired),” she wrote.

“But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time. 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.”

Sotomayor also highlighted the intellectual dishonesty in the religious institutions’ claims that Gov. Cuomo’s comments about heightened rates of infection among New York’s Orthodox Jewish populations were discriminatory and require the court apply strict scrutiny to the case, contrasting his comments with President Donald Trump’s statements regarding the “Muslim Ban.”

“Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a ‘Muslim Ban,’ originally conceived of as a ‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,’” she wrote, noting that those comments did not meet the “minimum requirement of neutrality” towards religion.

Notably, the Catholic Sotomayor was joined in her dissent by Justice Elena Kagan, who is Jewish and rarely joins with her colleague’s more acerbic dissents.

Read the full dissent below.

Sotomayor Dissent by Law&Crime on Scribd

[image via Leigh Vogel/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.