Sotomayor Calls Supreme Court's N.Y. Pandemic Ruling A 'Deadly Game'

[Judi Lynn]

Source: Huffington Post

11/26/2020 01:41 pm ET

In a fiery dissent, the justice said the court’s decision to block COVID-19 restrictions on religious gatherings “will only exacerbate the nation’s suffering.”

By Sarah Ruiz-Grossman

Justice Sonia Sotomayor said in a withering dissent that the Supreme Court’s ruling blocking COVID-19 restrictions for religious services in New York “will only exacerbate the Nation’s suffering.”

“Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily,” Sotomayor wrote in her dissent.

The Supreme Court on Wednesday ruled in a 5-4 vote in favor of the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish congregations that challenged New York state’s restrictions on large indoor gatherings amid the worsening coronavirus pandemic.

. . .

Conservative Chief Justice John Roberts joined the three liberal justices in dissent. Notably, Justice Elena Kagan, who is Jewish and from New York, joined Sotomayor, who is Catholic and also from New York, in the latter’s dissent.

Read more: https://www.huffpost.com/entry/sotomayor-dissent-coronavirus-religious-ruling_n_5fbfe731c5b66bb88c652c98

[yaesu]

1. they only put it on the docket so they could give a big wet kiss to the religious nuts

and their dictator tRump. The ruling is too late to mean anything since those churches are no longer effected. Just a fascist dog and pony show.

[SunSeeker]

2. Exactly. The case was MOOT. It should have been dismissed.

The retrictions had already been lifted.

It is almost unheard of for the Supreme Court to reach down and take up a moot case.

[FBaggins]

3. It wasn't moot

A party can't take action to moot their case if they have the power to change that action back after the court dismisses the case.

That doesn't mean that the court had to rule as they did. Roberts' dissent made clear that if Cuomo reimposed the restrictions, the court could undo it within days... but that isn't the same thing as the case being moot.

A good example would be the NY gun club case earlier this year. The city changed their policy in an attempt to moot the case before the court set a precedent that could impact far more than just NYC's gun control rules... but the attempt failed... until the state changed the rules so that NYC no longer possessed the power to put things back the way they had been. Then it became moot.

[SunSeeker]

4. It was moot. There was no proof NY was about to reimpose the same restrictions.

"Might" or "could" is not enough to establish a present case or controversy. Mootness was raised in Roberts' dissent.

[FBaggins]

5. That isn't how mootness works

There doesn't have to be proof that they were going to change their minds. It just has to be possible that he could. The relevant language is "the controversy (is) capable of repetition" (Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007))

Mootness was one of the grounds Roberts dissented.

No, it wasn't. In fact, the best argument against your position is that neither Cuomo's attorneys nor any of the dissenting justices even suggested mootness.

[SunSeeker]

6. Did you read Roberts' dissent?

CHIEF JUSTICE ROBERTS, dissenting.
I would not grant injunctive relief under the present cir-
cumstances. There is simply no need to do so. After the
Diocese and Agudath Israel filed their applications, the
Governor revised the designations of the affected areas.
None of the houses of worship identified in the applications
is now subject to any fixed numerical restrictions. At these
locations, the applicants can hold services with up to 50%
of capacity, which is at least as favorable as the relief they
currently seek.

Numerical capacity limits of 10 and 25 people, depending
on the applicable zone, do seem unduly restrictive. And it
may well be that such restrictions violate the Free Exercise
Clause. It is not necessary, however, for us to rule on that
serious and difficult question at this time. The Governor
might reinstate the restrictions. But he also might not.
And it is a significant matter to override determinations
made by public health officials concerning what is neces-
sary for public safety in the midst of a deadly pandemic. If
the Governor does reinstate the numerical restrictions the
applicants can return to this Court, and we could act
quickly on their renewed applications. As things now
stand, however, the applicants have not demonstrated their
entitlement to “the extraordinary remedy of injunction.”

[FBaggins]

8. I read the whole thing. Did you?

Nowhere does he suggest mootness.

And when Kavanaugh points out that none of the dissenters did so... he doesn’t disagree.

[SunSeeker]

14. The parties in Dufresne v. Veneman didn't bring up mootness either.

Parties, and even judges, get swept up by the issues. This was a very divided Court.

But Roberts was right, there was no need to rule on this, and as he noted, an identical Covid-19 restriction might not happen. That means there is no longer any present controversy. In other words, it became moot, like in Dufresne v. Veneman.

That's my opinion. You don't have to agree with it. And I don't have to agree with yours or anyone else's.

[FBaggins]

19. They didn't?

That's odd. The ruling cites:

"State Defendants-Appellees' Supplemental Declaration in Support of Mootness Contention, and"

"Federal Defendants/Appellees' Supplemental Declaration Re Mootness"

That sure looks like bringing it up.

But Roberts was right, there was no need to rule on this, and as he noted, an identical Covid-19 restriction might not happen. That means there is no longer any present controversy. In other words, it became moot, like in Dufresne v. Veneman.


You're repeating the same error. Roberts was right. There was no need to rule (just as I said in #3 above). But that's isn't mootness "in other words" because "might not happen" doesn't make something moot.

[SunSeeker]

30. No, they didn't. The court asked for supplemental declarations on it.

It was all the court's idea.

[FBaggins]

33. Perhaps you haven't read appellate decisions before?

There isn't anything at all uncommon about a court asking for briefs on the impact of changing circumstances. That's a very different thing from your initial claim that Cuomo not even claiming that the case had been mooted wasn't evidence that your interpretation was incorrect. The court suggesting the possibility first is not at all the same thing as the state not making the argument.

And, of course, in this case, neither the parties nor the dissents made such a suggestion.

[SunSeeker]

34. I've read lots of appellate decisions.

Unlike some folks here, I don't cite my background to buttress my opinion, I just use the facts.

It is unusual for a court to raise mootness when the parties didn't, but that is exactly what happened in Dufresne v. Veneman. Both parties wanted the issue decided on the merits. The Court had a different idea. After the briefs were submitted and after oral argument, the Court asked for supplemental briefing/declarations on mootness to flesh out the facts on ghat issue since it had not been briefed. And that was the issue that ended up deciding the case.

Here, the Supreme Court majority was wrong, and Roberts was right. I don't know why you are so obsessed with me thinking that, and why you are being so condescending and arrogant. It's pointless.

[FBaggins]

35. I haven't challenged the notion that Roberts got it right

If you re-read my very first response (#3 above), you'll see that was my position in the first place.

The problem is your misreading of that opinion as having anything at all to do with mootness.

I assure you - the CJ knows the word and would have used it if he thought it was appropriate.

[SunSeeker]

37. I think he didn't want to use sharp language on his fellow conservatives.

I think the 3 liberal justices were focused on the merits, like the defendants in Dufresne. Plus, it appears the case was rendered moot just days before the opinion was due to be published; the Court was notified by letter from Cuomo and there was no briefing on the issue. https://www.newsweek.com/ny-gov-cuomo-says-supreme-court-decision-overturning-covid-restrictions-religious-services-has-1550598 I agree with Cuomo on this, I think the 5 conservative justices wanted to show this is a new Court. This was just the type of case they had been salivating for, so they could bloviate about religious freedom and bash liberals.

You don't have to agree with my thinking.

I'm not "misreading" anything. I just disagree with your reading of it.

You have made it clear you think I'm wrong. Your posts are now just repetitive and insulting.

[FBaggins]

39. You don't "focus" on merits if you think the case is moot

Moreover... when you say how you would have ruled, you say that you would remand the case to the lower court with instructions to dismiss it.

No justice said anything like that.

You're certainly welcome to your own opinion... but it's one that doesn't make legal sense, isn't advanced by any party or justice involved, and also doesn't match the reading of the decision by any analyst I've seen. How about you?

[SunSeeker]

40. The dissents were for the most part written before the case was moot.

The case was rendered moot just days before the opinion was due to be published on the eve of the Thanksgiving holiday. The Court was notified by letter from Cuomo and there was no briefing on the issue. https://www.newsweek.com/ny-gov-cuomo-says-supreme-court-decision-overturning-covid-restrictions-religious-services-has-1550598 

I don't think mootness mattered to the 5 conservatives. I agree with Cuomo on this, I think the 5 conservative justices wanted to show this is a new Court. This was just the type of case they had been salivating for, so they could bloviate about religious freedom and bash liberals. The 3 liberal dissenters were focused on addressing the 5 conservatives' horrifically wrong arguments on the merits.

I haven't seen any legal scholar's dissection of the opinion. I imagine that will come after the Thanksgiving holiday. All I've run across is just a straight reporting of what the opinion says.

But in the meantime, we can each have our own differing dissections of the opinion. And we don't need to insult each other just because we disagree on its reading.

[FBaggins]

41. How?

Breyer gave Cuomo until the 18th to respond, which is when the response was filed. His letter was the next day.

Are you saying that the dissents were written overnight on the 18th?

That would be particularly interesting since they address both the change included in the letter and the diocese's response that was filed after it.

How about City of Mesquite v. Aladdin’s Castle mentioned in that response?

while a statutory change is usually enough to render a case moot, an executive action that is not governed by any clear or codified procedures cannot moot a claim

And we don't need to insult each other just because we disagree on its reading.

I'm missing where any insults were offered.

[SunSeeker]

42. Cuomo's letter was filed 11/19: the Diocese's letter was filed 11/20; the opinion issued 11/25.

https://www.newsweek.com/ny-gov-cuomo-says-supreme-court-decision-overturning-covid-restrictions-religious-services-has-1550598

The Justices no doubt had the majority & dissenting opinions on the merits largely drafted by the time they got Cuomo's letter and the Diocese's letter in response. These letters were not briefs; the briefs on the merits were filed weeks ago. There was no briefing on the mootness issue, so Cuomo had no chance to respond to the Diocese's assertion regarding City of Mesquite v. Aladdin's Castle, or anything else in the Diocese's letter. This was reflected in the opinions. Looks like Breyer, for example, just added to his dissent that it is not too much to ask that the parties refile their applications later, when an actual challenged restriction is still pending. The discussion in the dissents addressing the merits is plainly the dissenters' focus and much more flushed out, since these portions were no doubt written before the letter and everyone was packing up their offices to leave for the Thanksgiving holiday. My guess is they were probably planning to publish their opinion last Friday, before they suddenly got Cuomo's letter last Thursday. Then they scrambled to address the letter before issuing the opinion, probably with much of the Court staff already gone for the holiday. Hence the unusual issuance of the opinion late on Wednesday, the day before Thanksgiving.

Your arrogant tone and suggestion that I can't read, or don't know the law on mootness, or have no experience reading appellate opinions, is needlessly arrogant and insulting. And dead wrong. It has no place in a civil discussion of why this case should have been dismissed as moot.

You obviously agree with the conservative majority and the Diocese that this case isn't moot. I don't. You have made your position clear, and your posts are now just repetitive and insulting.

There is no point in continuing this discussion.

[Laha]

17. There's a whole lot of words there

But all they say is "we're religious, so kiss our ass."

And watch us die.

Fucking morons.

[SunSeeker]

7. And yes, it is moot.

If the case has become moot, even while on appeal, courts are required to dismiss it.   See Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997) (“To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ”).

A mere possibility is too remote to preserve a live case or controversy.   As the Supreme Court has stated, "speculative contingencies afford no basis for our passing on the substantive issues" presented. ( Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 2335, 45 L.Ed.2d 272 (1975)).


Here's a 9th Circuit case where the 9th Cicuit dismissed the case against the state as moot, after briefing and oral argument, without either the plaintff or defendants even raising mootness, let alone arguing for it (the 9th Circuit cited the above two Supreme Court cases):
https://caselaw.findlaw.com/us-9th-circuit/1433960.html

[FBaggins]

9. Note the clear difference in language

Between “we must dismiss” and “there’s no need to rule”

One is mootness... the other is judicial restraint

The dissenters would have said “we can’t rule on this... it’s no longer a case or controversy” if they thought the issue was moot... and of course Coumo would have made the argument (which he did just months ago when it actually applied)

[SunSeeker]

11. Roberts uses key mootness language ("no need to rule"..."it might not happen").

The fact pattern of this case is indistinguishable from Defresne v. Veneman.

[FBaggins]

18. Once again... that isn't "mootness language"

"Might not happen" isn't good enough.

Friends of the Earth v. Laidlaw Environmental Services makes that clear:

A defendant’s voluntary cessation of a challenged practice ordinarily does not deprive a federal court of its power to determine the legality of the practice. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289. If it did, courts would be compelled to leave the defendant free to return to its old ways. Thus, the standard for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. (emphasis mine)

That's the clear difference between this case and Defresne v. Veneman. In one case it's possible for the state to resume spraying for medfly, but since the Mediterranean fruit fly was thought to have been eradicated in California. A policy of spraying for it could not reasonably be expected to recur.

In order for Cuomo's order to be parallel, we would have to argue that specific areas of NY that had been "red" but were now "yellow" could not reasonably be expected to ever return to "red". Of course, that's nonsense since COVID has by no means been eradicated in NY.

I assure you - When Kavanaugh says "Even our dissenting colleagues do not suggest this case is moot or otherwise outside our power to decide"... one of them would have corrected him if that's what they were saying.

[SunSeeker]

31. No, they would just have to argue that the state did not intend to pursue the same actons.

The medfly has not been eradicated in CA. The state just switched from the controversial spraying to simply releasing sterile flies.

[FBaggins]

32. What matters were the circumstances before the court

At the time, they accepted expert testimony that "The Medfly is considered eradicated in the State of California"

...they would just have to argue that the state did not intend to pursue the same actons.

Nope. That would fail to demonstrate that it was "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur". You failed to address the recent example in NY. The city changing their policy so that plaintiffs got everything they asked for did not moot the case despite their claim that they had no intention of changing it back. It was only after the state legally removed the city's ability to change the policy that the case became moot.

Regardless, you can't argue that Cuomo does not intend to "pursue the same actions" since he didn't change the policy for churches in "red" areas... he just noted that the churches in question were no longer in areas with that designation. He obviously can't claim that he has no intent to ever designate them "red" again, because he can't predict COVID infection rates.

[SunSeeker]

36. Of course what matters are the circumstances before the court.

In Dufresne v. Veneman, the state did not say that it would never spray in the future. It just said it had no plans to, since the sterile fly releases were working. CA can get another medfly infestation at any time (i.e., travelers smuggling in infested foreign fruit) and if it is bad enough, and a sterile fly release was not adequate to deal with it expeditiously, the state would spray again. That's what plaintiffs argued to try to convince the court the case wasn't moot. The defendants did not dispute mootness, obviously, since dismissal based on mootness still preserved their right to spray in the future, and were happy to submit truthful declarations that the medfly was eradicated in CA.

Of course, the state could not predict if and when it would have another medfly infestation that would require spraying. Just like Cuomo could not predict future Covid-19 infection rates. That doesn't mean the case isn't moot.

[BigmanPigman]

10. If we add justices to balance the court

what does that entail and what is the time frame? Can this really be done within the next few years?

[Polybius]

12. We're not adding Justices until at least 2023

We don't have the votes. Manchin said two weeks ago that there's no way he would support this, and no Republican supports it either.

[BigmanPigman]

13. Damn!

Oh well, at least I know not to hope for it to happen any time soon. Thanks for responding!!!

[ancianita]

15. Not necessarily so. Votes change. There's are Manchins across the aisle, too.

Republicans can't survive under McConnell and they know it.

[Polybius]

29. No, there's no way to reach across the aisle on this one

No Republican will ever support adding Justices while the SC is in their favor, not Romney nor Collins nor Lisa M or anyone. Adding Justices is considered radical, since it's been 150 years. I bet 5 Democrats won't even support it.

[Mr. Sparkle]

16. Honestly, i would ignore the ruling and try and watch the supreme court enforce it.

Last edited Fri Nov 27, 2020, 05:46 AM - Edit history (2)

it goes against all common sense

[bucolic_frolic]

25. You may have a point there.

Governors in jail? Fined? They can ignore subpoenas too, can't they? And who does the SCOTUS rely on for enforcement powers? State and local officials.

If it's possible to rebel against SCOTUS rulings, better strategize early and often.

[Polybius]

45. It's moot

If they ignore the law, so too will the churches. Their fines for over-crowding would be immediately dismissed, since the enforcement is illegal.

[Polybius]

44. Sure, they could ignore it

However, the churches would also ignore it. Their fines would not stand, so it's pointless.

[RVN VET71]

20. Gorsuch, McRapey, Handmaiden, Uncle Thomas, Alito, and religion can all go to hell

The court didn't decide, it genuflected, and gave an early indication that Roe v. Wade is toast.

[ananda]

21. That is exactly right!

The court is in the grip of the murder-suicide cult,
and that cult thinking is so harmful and deadly it's
unreal!

[Roisin Ni Fiachra]

22. Covid Barret will harm and kill many more of us during

her tenure on the SCOTUS.

That's why Trump chose her.

[bucolic_frolic]

23. The ruling reaffirms the right to die

Death is more important than public health. Pure conservative logic. Have at it. If we can avoid them and protect ourselves, we can win this was of attrition. By 2022 there should be 3-4% fewer of THEM.

[PurgedVoter]

24. This ruling leave us unable to fend off the next future plague.

If something like Ebola starts to spread, cults will have the right to make sure we cannot stop it. Shame on those churches, Shame on those judges. Shame on Conservative Christianity. If an organization Church or otherwise goes against government advisement based on best available medical information, and deaths result, they should be sued into oblivion. Their names need to be heaped with shame. If they ignore science and cause harm, I don't think it is religious persecution to persecute the crimes.

[Towlie]

26. The right to spread disease! It must be in the Constitution somewhere, right?

 
←

[llashram]

27. to all on the "moot, "not moot" question

how many angels can sit on the head of a pin? This SC is just letting us know that African-Americans will return to being 3/5 of a person, "originalists" will grab that one. Women will be back in the alleys looking for the "coat hanger" crew to try and have control over their own bodies. A return to a racist, sexist pre-1920 patriarchy in Amerca is continuing. Judicially things are going to get very rocky. When we win the Senate at least we will have to power of creating a dam against the RW nutjobs sitting on the Supreme Court now. I hope.

[samsingh]

28. Maybe the Democratic party can really work at winning the 2 Georgia Senate seats

Avoid what happened in Florida - get on a message that resonates with the voters there and get them out to vote. Ensure that advertising is direct, frequent, targeted, and brutal. Get those Senate seats so we can save lives.

[Calista241]

38. If governments want to do this, they should pass a law giving themselves the power to do so.

Is social distancing smart? Yep. Can it save lives? Yep.

I am of a mixed view on this ruling and policies enacted by states.

Gorsuch and others see these restrictions placed upon citizens as governments overriding rights guaranteed to the people without due process of law. The first amendment grants freedom of assembly, not freedom of assembly as long as there isn't a pandemic. Is it only a pandemic that allows state governments to curtail otherwise guaranteed rights?

Taking this to its logical conclusion, can some conservative governor prevent people from working / congregating at an abortion clinic if a patient gets sick after a procedure? Can they use this justification to prevent protests or voting or a myriad of other activities that we would cry holy hell over? I have no doubt some of them would claim they're acting to protect the public while behind the scenes they are consolidating power and enforcing their beliefs on the population.

[ck4829]

43. K&R