But history suggests that judges often wind up disappointing the presidents who chose them. (President Dwight D. Eisenhower reportedly called the selection of Chief Justice Earl Warren “the biggest damn-fool mistake I ever made.”) Last week, Trump judges issued two major rulings. One delighted his supporters, showing Trump judges at their activist worst; the other dismayed them, showing Trump judges at their independent best.
The Supreme Court decision in Roman Catholic Diocese of Brooklyn v. Cuomo was pure right-wing judicial activism. This year, in cases from Nevada and California, the court refused to roll back covid-related restrictions on religious services. But in this case, the justices, by a 5-to-4 margin, ruled the other way. They overturned New York state limits on houses of worship in areas with severe outbreaks: In “red zones,” attendance was capped at 10 people; in “orange zones,” at 25. The majority tried to distinguish this case from the earlier ones, but the biggest difference was obviously the death of Ruth Bader Ginsburg and her replacement by Amy Coney Barrett.
The mostly widely quoted opinion — and also the least convincing — was the concurrence from Trump appointee Neil M. Gorsuch. He argued that the New York regulations were evidence of anti-religious animus, because Gov. Andrew Cuomo (D) “has chosen to impose no capacity restrictions on certain businesses he considers ‘essential.’ ” Gorsuch went on to list a range of “essential” businesses before triumphantly concluding: “So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”
As Justice Sonia Sotomayor pointed out in a blistering dissent joined by Justice Elena Kagan, Gorsuch’s comparison is deeply misleading: “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.” In fact, she pointed out, New York treats “houses of worship far more favorably than their secular comparators,” because in areas with high case counts, churches are allowed to remain open while movie theaters, concert halls and sports arenas are shuttered.
The court did not even have to decide this case, as Chief Justice John G. Roberts Jr. noted, because Cuomo had already relaxed the limits on religious services. That the majority chose to rule anyway shows its eagerness to act on the ill-founded conservative conceit that people of faith are somehow victims in the modern United States. Justice Samuel A. Alito Jr. recently said, “Religious liberty is fast becoming a disfavored right.” That’s as false as claims of a “war on Christmas.” But it serves as a convenient excuse for the conservative justices to give religious institutions carve-outs from generally applicable laws.
The cost of this particular religious exemption could be especially high. As Sotomayor wrote: “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.”
But just when you’re ready to despair about Trump judges, a case from the U.S. Court of Appeals for the 3rd Circuit restores some faith in the judiciary. A three-judge panel composed of two George W. Bush appointees and one Trump appointee summarily dismissed the Trump campaign’s bogus claims of fraud in Pennsylvania. Judge Stephanos Bibas, a former Federalist Society member who joined the bench in 2017, wrote the opinion: “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” This is typical of how judges across the country, Republicans and Democrats alike, are ruling on the Trump campaign’s fraudulent claims. Trump’s record in court is 1-39 so far.
If Trump imagines that the Supreme Court will override the 3rd Circuit and throw out Pennsylvania’s election results, well, I have a Mar-a-Lago membership to sell you. On Monday, even the conservative justices evinced skepticism of the administration’s xenophobic attempts not to count undocumented immigrants in the census for the first time in history. “A lot of the historical evidence and longstanding practice really cuts against your position,” Barrett told Trump’s acting solicitor general.
Yes, this was the same Amy Coney Barrett whose vote was decisive in the New York covid case. Conservative judges have their own agendas, and they don’t necessarily align with the agenda of the president who appointed them.