Around midnight last Friday Chief Justice John Roberts issued a short ruling affirming district and circuit court denials of an injunction sought by a Pentecostal church against California’s limitations on public gatherings.
California’s emergency measure limits attendance to 25 percent of capacity or 100 people at lectures, concerts, movies, theatres, spectator sports and religious services.
Although Roberts’ two page opinion temporarily resolved a dispute between California and a church, the Chief Justice’s primary target was Donald Trump. Sentence by sentence Roberts methodically rejects and rebukes Trump’s actions and assertions of authority during his incoherent and disastrous response to the pandemic.
Roberts dismissively rejects Trump’s assertion of authority and supremacy over the states and their governors concerning the details of “closing” their communities and reopening them.
Roberts pointedly wrote that such decisions are a “dynamic and fact-intensive matter” that the “Constitution principally entrusts to the politically accountable officials of the States ‘to guard and protect.’” All of Trump’s meandering bluster about asserting his authority and then later delegating it to the governors and still later threatening to countermand their decisions – about when and how to reopen – was/is bullshit.
Certainly aware that Trump is casting doubt on the Covid-19 death toll, Roberts begins the decision by noting it is “more than 100,000 nationwide” and wrote this at virtually the moment the tragic milestone was passed.
Roberts’ rejection of the petitioning church’s argument that it was similar to grocers, banks and construction sites (not subject to the 25 percent and 100 person limits) was equally a rejection of Trump’s declaration that houses of worship, like food stores, were “essential” and that states seeking to enforce crowd density limits on them needed his permission. Trump said: “if there’s any question [about restricting crowd size at houses of worship] they’re gonna have to call me but they’re not going to be successful in that call . . . if they don’t [remove density restrictions] I will override the governors.” Roberts’ ruling confirmed the emptiness of Trump’s petulant threat.
The Chief even targeted Trump’s promotion of Hydroxychloroquine, if not his speculation about gargling Lysol, when stating that to date there is “no known cure, no effective treatment” and no prophylaxis. Frequent flyers of HL know that we disagree with a majority of Roberts’ rulings but think him a great Chief. See Roberts Seizes The Moment, 7/7/2012, Albany Times Union; Watch Out For Kennedy, 4/30/2012, Albany Times Union; HL 96; HL 86; HL 36; HL 19, all available on this site.
While our hopes that Roberts would do certain things or reach certain outcomes have often been dashed, our faith in his integrity and leonine devotion to the stature and power of the high court has almost always been justified. The instant rebuke of Trump also included a final paragraph belittling Justices Kavanaugh, Thomas and Gorsuch for saying that it was “indisputably clear” that California’s emergency regulations were unconstitutional. Roberts’ attack on Trump paired with this slap at the Court’s hard right wing are cause for optimism about three imminent decisions. Each involves Trump’s assertion that he is immune from criminal or congressional subpoenae. If despite settled precedent, that should compel unanimous or near such outcomes rejecting Trump’s assertions, the Court is divided, Roberts’ votes will be determinative. The John Roberts who tongue-lashed Trump for his 2018 “Obama Judge[s]” attack and targeted the President last Friday apparently recognizes the menace Trump is and presents. Roberts has the opportunity to swiftly strike three more times this month.
Bonus First Amendment Analysis
Con law and 1A buffs took note that the dominant theme of Roberts’ short opinion was “neutrality” between secular and religious endeavors. At HL that was an extraordinarily happy development. The last 50 years have witnessed the rise and dominance of religious accommodation – allowing religious institutions and followers to do or not do things prohibited or required of others. This has seriously eroded the freedom from religion and the wall between church and state that Jefferson and his colleagues intended to erect – no less to protect religion and its practitioners.
Roberts’ opinion was rendered in an expedited and summary procedure and so lacks the weight and precedential value of a full majority opinion, but still is very good and will be cited.
 Alito also dissented but did not sign on to the dissenting opinion authored by Kavanaugh, as Thomas and Gorsuch did.