US Supreme Court demonstrates again, why it should not exist — Calvary Chapel v Sisolak

© 2020 Peter Free

 

26 July 2020

 

 

Remember when the US Supreme Court proved . . .

 

. . . (beyond any reasonable doubt) that it does not deserve to exist?

 

Regarding its 2019 Rucho v. Common Cause opinion, I wrote that:

 

 

What the "conservative" majority did in Rucho v. Common Cause — putting forward the opinion that the Court is helpless to oppose ridiculous levels of vote-repressing political gerrymandering — is unconscionable.

 

This one decision — by itself — and not counting all the other obviously idiotic and partisan opinions this Court has come up with throughout history — is enough to obviate any reason (at all) to have a federal "supreme" court in the United States.

 

The Court's long-standing "conservative" majority has no interest (whatsoever) in preserving the supposed democracy that the Founders allegedly put in place.

 

 

This Grand Irony arriving now, despite the Court's own Marbury v. Madison claim to being responsible for exactly that.

 

 

 

And this week . . .

 

. . . the apparently 'liberal' side of the Court proved the same thing.

 

 

In Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada . . .

 

The Court silently rejected a Nevada church's eminently reasonable attempt to invite the Court to prevent Nevada Governor Sisolak's slap-in-the-face discriminatory COVID-19 public health order — that limits churches to 50 person capacities — from being enforced.

 

 

Only 'conservative' Justice Samuel Alito . . .

 

. . . joined by justices Thomas and Kavanaugh, objected to the majority's unrecorded (inferably piffle-headed) reasoning in doing so:

 

 

Claiming virtually unbounded power to restrict constitutional rights during the

COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services.

 

A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy— and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

 

That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing.

 

We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.

 

Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, 591 U.S. ___ (24 July 2020) (Alito dissenting) (at page 1)

 

 

What is genuinely shocking . . .

 

. . . about the majority's refusal to intervene (by issuing an injunction) is what Justice Alito explained next:

 

 

Calvary Chapel Dayton Valley is a church located in rural Nevada.

 

It wishes to host worship services for about 90 congregants, a figure that amounts to 50% of its fire-code capacity.

 

In conducting these services, Calvary Chapel plans to take many precautions that go beyond anything that the State requires. In addition to asking congregants to adhere to proper social distancing protocols, it intends to cut the length of services in half.

 

It also plans to require six feet of separation between families seated in the pews, to prohibit items from being passed among the congregation, to guide congregants to designated doorways along one-way paths, and to leave sufficient time between services so that the church can be sanitized.

 

According to an infectious disease expert, these measures are “equal to or more extensive than those recommended by the CDC.”

 

I would grant an injunction pending appeal. Calvary Chapel is very likely to succeed on its claim that the directive’s discriminatory treatment of houses of worship violates the First Amendment.

 

In addition, unconstitutionally preventing attendance at worship services inflicts irreparable harm on Calvary Chapel and its congregants, and the State has made no effort to show that conducting services in accordance with Calvary Chapel’s plan would pose any greater risk to public health than many other activities that the directive allows, such as going to the gym.

 

The State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos.

 

Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, 591 U.S. ___ (24 July 2020) (Alito dissenting) (at pages 2-3)

 

 

In support of his principled legal reasoning . . .

 

. . . Alito made a point that concerned me months ago about American Government's evidence-lacking and autocratic responses to COVID.

 

Oppressive reactions to emergencies should not stay so, as new evidence arrives that allows one to refine one's previously Constitution-flouting responses to them:

 

 

[A] public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.

 

As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.

 

Now four months have passed since the original declaration.

 

The problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.

 

Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, 591 U.S. ___ (24 July 2020) (Alito dissenting) (at pages 3-4)

 

 

Alito made it clear how blatantly un-Constitutional . . .

 

. . . Nevada's actions have been:

 

 

And while the State suggests that it strictly enforces the rules applicable to casinos, photos and videos taken in casinos after they were allowed to reopen show widespread and blatant safety violations.

 

Patrons without masks are seen at close quarters, and the State has not brought to our attention any evidence that it has cracked down on non-complying casinos.

 

The sharp spike in COVID–19 cases since the casinos reopened belies the State’s strict enforcement claims.

 

While the directive’s treatment of casinos stands out, other facilities are also given more favorable treatment than houses of worship.

 

Take the example of bowling alleys. Some Las Vegas bowling alleys where tournaments are held can seat hundreds of spectators, and under the directive, these facilities may admit up to 50% of capacity.

 

Not only that, the State tolerates seating arrangements at these facilities that pose far more danger than the plan Calvary Chapel proposes. An official state guidance document states that groups of up to 50 people may sit together in the grandstands of a bowling alley provided that they maintain social distancing from other groups.

 

Thus, while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 provided that each group maintains social distancing from other groups.

 

In sum, the directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.

 

The directive fares no better under the Free Speech Clause.

 

Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, 591 U.S. ___ (24 July 2020) (Alito dissenting) (at page 7)

 

 

The moral? — The US Supreme Court has again refused to do its most basic job

 

We now have two cases in proof from both political sides of the Bench. The first (Rucho), decided 'conservatives'. And the second (Calvary Chapel), in essence by 'liberals'.

 

Thus, the same Court that arbitrarily declared in Marbury v. Madison that:

 

 

it could overrule both other branches of American Government

 

as well as

 

the entirety of the American public

 

 

. . . now also allocates to itself the right to equally arbitrarily withdraw from doing the same Constitution-protecting job that it had assigned itself in 1803.

 

A more pernicious form of randomly unprincipled and anti-democratic tyranny is challenging to imagine. The Supreme Court has no principle-supporting societal value. It constitutes an oligarchical affront to Liberty.

 

Within just this last year, the Court has conclusively demonstrated why the Founders never granted it the powers that it eventually allocated to itself. That self-allocation having been made, in future-predicting fashion, upon its own authority.

 

The more it changes . . .