The legal trend is a significant one, and the ramifications of these rulings will go well beyond the pandemic. The court challenges represent the logical culmination of a movement among many judges in which socially conservative religious values are linked to business-oriented libertarian values to oppose the system of administrative government that has played a foundational role in progressive and liberal politics since the New Deal.
First, consider the religious-liberty challenges to the shutdown orders, which have been remarkably polarized along political lines. In dozens of federal court cases, judges appointed by President Trump have shown hostility to the public health measures, while judges appointed by Democratic presidents, or even previous Republican presidents, have mostly deferred to the governors. The legal scholar Zalman Rothschild examined the cases involving religious challenges — there have been several dozen — and could not find a single case where a Trump-appointed judge upheld (or voted to uphold) an order or a Democrat-appointed judge struck one down. Judges appointed by Republican presidents other than Trump sided with religious organizations about 40 percent of the time.
Two of these cases reached the Supreme Court. In one, a church argued that an order by the governor of Nevada that put a 50-person attendance cap on houses of worship but not casinos discriminated against religion — although the cap applied to various other secular facilities, such as concert halls, as well. The other case involved a similar order from California. Both times, the states prevailed by a narrow margin of 5 to 4, with Chief Justice John G. Roberts Jr. joining the liberal justices to form the majority. The four other Republican-appointed justices — Clarence Thomas, Samuel Alito, Neil M. Gorsuch and Brett M. Kavanaugh — dissented. If Judge Amy Coney Barrett is confirmed to the court, she may form a majority that would end lockdown orders like those in Nevada and California.
Churches have played a central role in many of the anti-shutdown cases, but judicial opposition to the lockdown orders is not just about religious liberty. It’s also, and perhaps really, about the role of government in American life. When the Michigan Supreme Court struck down Whitmer’s orders, it did not base the decision on religious rights but rather on an antiquated rule known as the nondelegation doctrine. That principle holds that a legislature cannot transfer the authority to make laws from itself to executive agents. (Without such authority, regulatory agencies like the Environmental Protection Agency would not be able to issue rules that protect the public.) In 1935, the Supreme Court cited this doctrine in a pair of cases that gutted a New Deal statute that empowered the executive branch to issue broad regulations to address the economic crisis. The court then retreated, as it became clear that the nondelegation doctrine would prevent the government from regulating business to protect public health, safety and the environment. The court has not relied on it to strike down a statute since. But the Michigan court cited a dissent by Gorsuch, who wants to revive it, and seemed to take that dissent as an expression of the law of the land, as if it were still 1935.
The nondelegation doctrine is just one of a number of rules that the conservative judges and justices are reviving, reinventing or just making up to weaken the regulatory powers of the federal government. The incipient transformation of the free-exercise clause from a shield for religious minorities into an offensive weapon against government actions that offend socially conservative values — including opposition to same-sex marriage — is also part of that revolution. Religious-liberty doctrine and libertarian law are coming together — twin tools to dismantle the post-New Deal state.
The linkage between religion and business is a peculiarly American phenomenon. Religion — and perhaps Catholicism in particular — has traditionally been hostile to business. But in the United States, religious movements and Big Business have forged a political alliance that goes back to the late 19th century, joining forces over their antipathy to government. Then, as now, their vehicle for political influence was the Republican Party. In the past few decades, pro-business lobbying groups have joined evangelical organizations to back judges who have reliably promoted both God and mammon.
This alliance poses endless problems for Democrats who are sensitive to charges of religious bigotry but are now being confronted by a Supreme Court that is hostile to all aspects of their agenda — and a nominee who seems likely to side with the other conservative justices. A conservative, devoutly Christian religious majority on the court not only threatens abortion rights; it threatens the Affordable Care Act, greenhouse gas regulation, and protections for racial and sexual minorities, and now public health measures that address the coronavirus pandemic.
The clash between the court’s anti-government ideology and public opinion, which is increasingly secular and liberal, has led to calls from the left to pack the court if the Democrats take power in January. The culture war, which has badly damaged so many American institutions and roiled our democracy, is on the threshold of claiming another victim: the Supreme Court.