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In 2020, Senator Ted Cruz wrote One Vote Away: How a Single Supreme Court Seat Can Change History, and in 2021 we see the United States Supreme Court again making his case. On 9 April 2021, amidst the continuing media smoke screen of one crisis or another, the U.S. Supreme Court issued a 5-4 decision holding at Americans who want or believe they need to physically assemble together in bible study will likely prevail against the Christian-hating communists running California. The razor thin majority made explicit that they were slapping down the 9th Circuit again. The left wing disagreed, regurgitating the lab-coat left’s long-rehearsed lies, and G.W. Bush’s man on the bench, John Roberts, Jr., sided with the left while taking the dodge of not adding his name to their rationale for standing our First Freedom on its head. Personnel is policy and this latest disgraceful episode again affirms the danger of letting RepubliCAN’Ts nominate justices without careful scrutiny across all areas of supposed conservative concern, from national security, to economic, to religious/ cultural conservativism. A read of the slim majority’s written opinion and a perusal of the current and retired living justices’ official biographies is instructive.
Personnel is policy, especially with Supreme Court justices:
The Left Wing:
Stephen G. Breyer, Associate Justice,
From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit [Carter], and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the United States Sentencing Commission, 1985–1989. President Clinton nominated him as an Associate Justice of the Supreme Court, and he took his seat August 3, 1994.
Sonia Sotomayor, Associate Justice,
In 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and she served in that role from 1992–1998. She served as a judge on the United States Court of Appeals for the Second Circuit from 1998–2009. President Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26, 2009, and she assumed this role August 8, 2009.
Elena Kagan, Associate Justice,
Between 2003 and 2009, she served as the Dean of Harvard Law School. In 2009, President Obama nominated her as the Solicitor General of the United States. A year later, the President nominated her as an Associate Justice of the Supreme Court on May 10, 2010. She took her seat on August 7, 2010.
The New RBG?
John G. Roberts, Jr., Chief Justice of the United States,
He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him as Chief Justice of the United States, and he took his seat September 29, 2005.
Steven Hayward on Power Line Blog included a meme of John Roberts in a RBG lace collar.
The Right Wing:
Clarence Thomas, Associate Justice,
From 1990–1991 [GHW Bush], he served as a Judge on the United States Court of Appeals for the District of Columbia Circuit. President [GHW] Bush nominated him as an Associate Justice of the Supreme Court and he took his seat October 23, 1991.
Samuel A. Alito, Jr., Associate Justice,
He was appointed to the United States Court of Appeals for the Third Circuit in 1990 [GHW Bush]. President George W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat January 31, 2006.
But wait! This is a G.W. Bush pick, right? Wrong. Alito was crammed down Bush’s throat when social conservatives rose up, rallied by talk radio, and forced Senators to reject Bush’s Texas crony pick, a woman with no judicial paper trail by which to judge her intentions.
Neil M. Gorsuch, Associate Justice,
He was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 2006. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on October 6, 2018.
Brett M. Kavanaugh, Associate Justice,
He was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 2006 [GW Bush]. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on October 6, 2018.
Amy Coney Barrett, Associate Justice,
She was appointed a Judge of the United States Court of Appeals for the Seventh Circuit in 2017. President Donald J. Trump nominated her as an Associate Justice of the Supreme Court, and she took her seat on October 27, 2020.
Sandra Day O’Connor (Retired), Associate Justice,
In 1975 she was elected Judge of the Maricopa County Superior Court and served until 1979, when she was appointed to the Arizona Court of Appeals. President Reagan nominated her as an Associate Justice of the Supreme Court, and she took her seat September 25, 1981. Justice O’Connor retired from the Supreme Court on January 31, 2006.
Reagan wrote in his diary immediately after he announced her appointment that pro-life groups were mobilizing against his pick. He was annoyed and felt assured by trusted advisors that she had taken good votes in the Arizona legislature, where she was the first female Arizona Senate Majority Leader. Reagan was disastrously wrong, but was probably spared being aware of his failure as O’Connor penned the majority opinion in Planned Parenthood of Southeastern Pa. v. Casey in 1992, keeping Roe v. Wade and virtually unlimited abortion the judge-made law of the land for decades.
Anthony M. Kennedy (Retired), Associate Justice,
He was appointed to the United States Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988. Justice Kennedy retired from the Supreme Court on July 31, 2018.
David H. Souter (Retired), Associate Justice,
He became a Judge of the United States Court of Appeals for the First Circuit on May 25, 1990. President [GHW] Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 9, 1990. Justice Souter retired from the Supreme Court on June 29, 2009.
Consider the dishonest posture of O’Connor, Souter, and Kennedy, as they first claimed they needed to keep virtually unrestricted abortion the judge-made law of the land, and then had no problem imposing their own progressive “moral code” in matters of sexuality. As Parade celebrated O’Connor’s legacy:
Planned Parenthood v. Casey (1992)
“Liberty finds no refuge in a jurisprudence of doubt,” begin O’Connor and Justices Souter and Kennedy in an opinion upholding the court’s 1973 decision in Roe v. Wade. “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
Here is, in part, the 5-4 decision for injunctive relief for home bible studies in California [emphasis added in bold]:
ON APPLICATION FOR INJUNCTIVE RELIEF
[April 9, 2021]
The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous. This Court’s decisions have made
the following points clear. First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.
[ … ]
Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.
[ … ]
Third, the government has the burden to establish that the challenged law satisfies strict scrutiny.
[ … ]
Fourth, even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not
necessarily moot the case. And so long as a case is not moot, litigants otherwise entitled to emergency injunctive relief remain entitled to such relief where the applicants “remain under a constant threat” that government officials will use their power to reinstate the challenged restrictions.
[ … ]
These principles dictated the outcome in this case, as they did in Gateway City Church v. Newsom, 592 U. S. ___ (2021). First, California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time. App. to Emergency Application for Writ of Injunction 183–189. Second, the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than applicants’ proposed religious exercise at home. The Ninth Circuit erroneously rejected these comparators simply because this Court’s previous decisions involved public buildings as opposed to private buildings. Tandon v. Newsom, ___ F. 3d ___, ___, ___–___, 2021 WL 1185157, *3, *5–*6 (CA9 2021). Third, instead of requiring the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities, the Ninth Circuit erroneously declared that such measures might not “translate readily” to the home. Id., at *8. The State cannot “assume the worst when people go to worship but assume the best when people go to work.” Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam). And fourth, although California officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of “moving the goalposts” retain authority to reinstate those heightened restrictions at any time. South Bay, 592 U. S., at ___ (statement of GORSUCH, J.) (slip op., at 6).
Applicants are likely to succeed on the merits of their free exercise claim; they are irreparably harmed by the loss of free exercise rights “for even minimal periods of time”; and the State has not shown that “public health would be imperiled” by employing less restrictive measures. Roman Catholic Diocese, 592 U. S., at ___ (slip op., at 5). Accordingly, applicants are entitled to an injunction pending appeal.
This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. See Harvest Rock Church v. Newsom, 592 U. S. ___ (2020); South Bay, 592 U. S. ___; Gish v. Newsom, 592 U. S. ___ (2021); Gateway City, 592 U. S. ___. It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And historically, strict scrutiny requires the State to further “interests of the highest order” by means “narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (internal quotation marks omitted). That standard “is not watered down”; it “really means what it says.” Ibid. (quotation altered).
THE CHIEF JUSTICE would deny the application.
JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting.
I would deny the application largely for the reasons stated in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021) (KAGAN, J., dissenting). The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here. As the per curiam’s reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons.
And even supposing a court should cast so expansive a comparative net, the per curiam’s analysis of this case defies the factual record. According to the per curiam, “the Ninth Circuit did not conclude that” activities like frequenting stores or salons “pose a lesser risk of transmission” than applicants’ at-home religious activities. Ante, at 3. But Judges Milan Smith and Bade explained for the court that those activities do pose lesser risks for at least three reasons. First, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” with participants “more likely to be involved in prolonged conversations.” Tandon v. Newsom, ___ F. 3d ___, ___, 2021 WL 1185157, *7 (CA9, Mar. 30, 2021). Second, “private houses are typically smaller and less ventilated than commercial establishments.” Ibid. And third, “social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.” Ibid. These are not the mere musings of two appellate judges: The district court found each of these facts based on the uncontested testimony of California’s public-health experts. Tandon v. Newsom, ___ F. Supp. 3d ___, ___, 2021 WL 411375, *30 (ND Cal., Feb. 5, 2021); see Tandon, ___ F. 3d, at ___, 2021 WL 1185157, *7 (noting that the applicants “do not dispute any of these findings”). No doubt this evidence is inconvenient for the per curiam’s preferred result. But the Court has no warrant to ignore the record in a case that (on its own view, see ante, at 2) turns on risk assessments.
In ordering California to weaken its restrictions on at-home gatherings, the majority yet again “insists on treating unlike cases, not like ones, equivalently.” South Bay, 592 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 5). And it once more commands California “to ignore its experts’ scientific findings,” thus impairing “the State’s effort to address a public health emergency.” Ibid. Because the majority continues to disregard law and facts alike, I respectfully dissent from this latest per curiam decision.
This pack of lawyerly and lab-coat leftist tripe is building the case to pack the court, making Roberts and then, likely, Kagan or Sotomayor, the chief justice of a permanent leftist kangaroo court.Published in