From The New York Times:
In recent months, churches in California and Nevada asked the Supreme Court to lift government restrictions on attendance at religious services meant to address the coronavirus pandemic. The churches lost.
The vote in both cases was 5 to 4, with Chief Justice John G. Roberts Jr. joining what was then the court’s four-member liberal wing. One of those liberals, Justice Ruth Bader Ginsburg, died in September. Her successor, Justice Amy Coney Barrett, joined the court last month.
It will not take long to assess the significance of that switch.
On Thursday, the Roman Catholic Diocese of Brooklyn filed an emergency application asking the Supreme Court to lift restrictions imposed by Gov. Andrew M. Cuomo of New York. The case is broadly similar to the earlier ones. The outcome, even as the pandemic is worsening, may be quite different.
The general question in all of the cases is whether government officials or judges should calibrate responses to the public health crisis.
One view, expressed by Chief Justice Roberts in a concurring opinion in the California case, is that officials charged with protecting the public “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people.”
A few hours after the diocese filed its application, Justice Samuel A. Alito Jr. delivered a slashing speech to a conservative legal group that expressed the opposite view. He had dissented in both of the earlier cases, and his speech echoed points he had made in the one from Nevada.
“Whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes,” Justice Alito said on Thursday, rejecting the view that “whenever there is an emergency, executive officials have unlimited, unreviewable discretion.”
The court is likely to rule on the dispute from Brooklyn in the next week or so. The case may be the first in which Justice Barrett’s vote changes the court’s direction.
The restrictions in Brooklyn are severe. In shifting “red zones,” where the coronavirus risk is highest, no more than 10 people may attend church services. In slightly less dangerous “orange zones,” attendance is capped at 25. This applies even in churches that can seat more than 1,000 people.
Even as he ruled against the diocese, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn praised it as “an exemplar of community leadership” that had been “enforcing stricter safety protocols than the state required.”