By Dr. Ilan Fuchs
Faculty Member, Legal Studies, American Military University
A presidential term lasts four years; if the incumbent is fortunate and successful enough another four-year term will follow. But politicians can be quickly forgotten. Of all the American presidents, quite a few are only remembered by trivia aficionados or Ph.D. students who decided for whatever reason to write their dissertation on a political figure that left a limited impact on the history of this nation.
Then there are presidents who outlive their terms. Some, like Lincoln or Teddy and Franklin Roosevelt, make structural changes to the political or government system that last well beyond the date they left the White House. When it comes to the judiciary Donald Trump will leave his mark for generations to come.
Even before he nominated Amy Coney-Barrett to the U.S. Supreme Court after the passing of Justice Ruth Bader-Ginsburg, Trump had appointed almost one quarter of the judges in the federal system.
According to the Pew Research Center, that number is not unusual in and of itself when compared to other presidents. What makes Trump’s judicial changes stand out is the fact that he appointed so many judges at the appellate level.
Trump’s Three Conservative Appointments Will Change the Character of the Court for Years to Come
The attention to this process obviously culminates in the Supreme Court, where Trump’s three conservative appointments will change the character of the Court for years to come. These three young justices, along with Justices Samuel Alito and Clarence Thomas, will solidify a conservative leaning on the high court that will last for decades.
A recent court decision underscores this realignment. On November 25, the U.S. Supreme Court ordered a preliminary injunction in the case of Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York. This order referred to Governor Cuomo’s executive order identifying clusters of COVID-19 cases in the state and restricting attendance at worship services in those areas to 10 people.
As Oyez explained, “The Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues sued to block enforcement of the executive order as it affected them. The organizations claimed that the order violated their First Amendment right to the free exercise of religion guaranteed by the First Amendment, particularly as secular businesses in the same areas remained open.”
Why is this important if this is only a discussion of an injunction? An injunction suggests there is a good chance of the appeal being accepted. The Supreme Court ruled that: “The applicants have made a strong showing that the challenged restrictions violate ‘the minimum requirement of neutrality’ to religion.”
The Court Said the Measures Taken by the Governor Were Too Harsh
The court said the measures taken by the governor were too harsh and did not take into account the specific conditions of each house of worship, namely its occupancy limits. The court in its per curiam decision (an opinion not signed by any justice but that represent the majority) concluded that:
“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 ignored. By effectively barring many from attending religious services, the restrictions at issue here 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.”
This case goes well beyond dry questions of law. The case touches on core questions of values in American public life. Much can be read between the lines of the Court’s 5-4 Roman Catholic Diocese v. Cuomo decision with Chief Justice John G. Roberts Jr. and the court’s three liberal members dissenting.
The Assertion that Attending Church Is No More Dangerous than Grocery Shopping Is Highly Dubious, if Not Flat-Out Wrong
One scholar who signed an amicus brief for the court supporting the respondents was Professor Nomi Stolzenberg of the USC law school. She said “The problem with this argument is that it’s factually false—and it rests on a logical confusion. On the factual question, the assertion that attending church is no more dangerous than grocery shopping, is highly dubious, if not flat-out wrong. The governor’s view is supported by medical research that concludes that groups of people standing still, indoors, and, worst of all, raising their voices in unison are substantially more likely to spread the virus than people not staying stationary and not projecting their voices, like people entering a grocery store or a private office.”
This point of view is very telling. Stolzenberg is saying that religious groups cannot accept facts; this stops being a matter of values that are protected by constitutional principles and turns into simply a case of truths or lies. The plaintiffs did not contend that the virus cannot spread in houses of worship, but that there are effective ways to minimize the danger which are less severe than those used by the governor.
It Is Possible to Say Gov. Cuomo Went Too Far and Should Have Used a More Balanced Approach
The minority did not use this line of thinking, far from it. Some of the dissenting Justices wrote that it is possible to say Gov. Cuomo went too far and should have used a more balanced approach. But they also went on to say that the discussion was mute since the restrictions were lifted.
The important point here is that an approach that dismisses major religious groups’ claims is incapable of accepting reality and scientific facts, and represents a very specific political agenda. This agenda will need to deal with a court that has many jurists who will oppose this position vehemently.
Stolzenberg asserts that Cuomo’s position was not based on enmity toward religion, but rather was simply a reliance on experts’ advice concerning the spread of the pandemic: “Suppose we granted that the factual determination is wrong.
“In other words, we say, fine, the science isn’t completely settled. We don’t know whether religious services are more likely to spread the virus than grocery shopping. But that still has no relevance to the question of whether the government is violating the right to the free exercise of religion, unless the (supposed) falsity of the government’s factual claim is a sign of its discriminatory intent. That’s the real bone of contention here.
“The plaintiffs argue that there’s bad faith or bad motive on the part of the Governor, as a result of which they’re subjected to disparate treatment. But there is no evidence to support this claim, other than the supposed falsity of the government’s assertion that unlimited numbers of worshippers are dangerous.”
The plaintiffs actually did present evidence in the circuit court and these contentions were mentioned in Justice Gorsuch’s remarks. This kind of rhetoric that denigrates religious groups and dismisses allegations of discrimination is a big part of why so many religious groups have supported Trump. The active quest to appoint conservative judges will prove to be a lasting defense for religious freedoms for decades in the future.