The Pivotal Justice in the Supreme Court Decision?
By Pierre Lemieux
It is, in my opinion, difficult to disagree with the Supreme Court decision that prevented the governor of New York from imposing strict limits on religious attendance for public health reasons—while litigation on the substance of the case continues. But I wish to emphasize two subsidiary points, one being a quibble with the Wall Street Journal’s subtitle: “Justice Amy Coney Barrett cast the pivotal vote to depart from past cases” (“Supreme Court Blocks Covid-19 Restrictions on Religious Services in New York,” November 26, 2020).
The majority in the 5-to-4 decision was made of Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett. It’s not false to say that Barrett was a pivotal judge, but is slightly misleading to focus on her and say that she was the pivotal judge if the word is used in the sense of “decisive.” With a majority of one, every Justice who voted on that side was pivotal.
Another example: Suppose that Joe Biden had won the popular vote against Donald Trump not by 6,000,000 votes but by a single vote. The probability of that is infinitesimal, but let’s just assume it materialized. Then, each and every voter would have been pivotal. It would not have been false to say that Joe next door was the pivotal voter, but not very enlightening. (Note that recounts and challenges would very likely have switched the majority back and forth a few times, but this is not my point.)
In defense of the Journal, however, there is one reason to focus on Justice Barrett as a pivotal judge since she was the latest one nominated by Trump, in controversial circumstances shortly before the November election. If that seat had been left vacant, the Supreme Court would presumably have tied 4-to-4, and the lower court decision would have remained in force, at least for now, supporting Cuomo’s restrictions (if I understand correctly).
An observation of a different sort is that all three Justices nominated by outgoing president Donald Trump voted to defend freedom of religion guaranteed by the First Amendment, which is a good point in his favor—although he himself, to say the least, did not demonstrate strong preferences for the free-speech protections in the same amendment. The Supreme Court decision also suggests that conservative judges are often more likely to protect individual liberties than “liberal” ones, even if caveats are in order, including regarding Justice Roberts in this case. We are told that Trump consulted the Federalist Society on judicial nominations instead of relying on his empty and dangerous intuitions. One wishes he had done the same on trade and other economic matters.