Elena Kagan Rips Conservative Supreme Court Justices In New Opinion


In a Friday decision, the U.S. Supreme Court overturned California’s statewide ban on indoor religious services in areas with high community spread of COVID-19, but the court’s three liberal justices, including Elena Kagan, Sonia Sotomayor, and Stephen Breyer, opposed the move. Writing for the liberal side in the case, which is known as South Bay United Pentecostal Church v. Newsom, Kagan noted that the conservative majority’s decision “injects uncertainty into an area where uncertainty has human costs.” Indoor religious services could, in a very substantive sense, help facilitate the continued spread of COVID-19, which has already claimed the lives of hundreds of thousands of Americans.

The conservative majority based their decision on the idea that churches were treated with punitive unfairness by California authorities. In reality, secular gatherings have also been subject to sharp restrictions in the state. Kagan wrote, in part, as follows:

‘Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic… That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic… To state the obvious, judges do not know what scientists and public health experts do. So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.’

In sharp contrast, Justice Neil Gorsuch — an appointee of ex-President Trump — appeared to characterize the COVID-19 restrictions in California as apparently concealing a supposed vendetta against “liberty,” which is obviously not correct in any meaningful regard. There is no systematic conspiracy among government officials to use the COVID-19 pandemic as a cover to attack the availability and very concept of liberty. Nevertheless, Gorsuch complained that “government actors” have been “moving the goalposts” and “adopting new benchmarks that always seem to put restoration of liberty just around the corner.” What good would “liberty” do people who are dead because of COVID-19?

The Biden administration and Congressional Democrats have been working on their own efforts to curtail the impacts of COVID-19. These efforts include a planned new economic relief package from Congress and a recently imposed order demanding face masks while at airports, on planes, and in other public transportation contexts across the country.