The irony appears not to have dawned on Linda Greenhouse as she typed up her latest column, supposedly about Roman Catholic Diocese of Brooklyn v. Cuomo and oddly entitled “Justice Amy Coney Barrett’s Choice.” One might think that Greenhouse, a Pulitzer Prize-winning journalist and New York Times mainstay who’s been covering the Supreme Court for decades, would spend her space in the paper of record analyzing the per curiam, concurring, and dissenting opinions issued in the case. But Greenhouse was unwilling to grapple with the facts, and instead limited her discussion of the case to the following passage:
Justice Amy Coney Barrett had a choice.
She could provide the fifth vote on the Supreme Court that Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh needed — and would not have received from the Justice Ruth Bader Ginsburg — to place a temporary block, in the name of religious freedom, on New York’s pandemic-driven limitations on church and synagogue attendance.
Or she could give that precious fifth vote to Chief Justice John Roberts in the name not only of public health but also of judicial modesty, since the most severe restrictions the Catholic and Jewish organizations were complaining about were no longer in effect and the whole case might well disappear into thin air if the Supreme Court simply stayed its hand.
Note the abstractions, which are a must for Greenhouse. As a judicial consequentialist, she is far more concerned with the success of the “blue team” than with the proper application of the law. The petitioners in the case, a Catholic diocese and a Hasidic Jewish group, had both mandated masks, limited attendance to between 25 and 33 percent of capacity, and willingly complied with all other government guidelines. So they certainly weren’t challenging the ability of the state of New York to place any “pandemic-driven limitations on church and synagogue attendance.” No, what they were challenging was the disparate treatment of religious institutions as compared with secular ones. While houses of worship were limited to ten attendees in certain areas (deemed “red zones”) and 25 in others (“orange zones”), essential businesses in red zones were given total discretion over how many people could be admitted. In orange zones, the same discretion was extended even to non-essential businesses.
The controlling opinion takes issue with this double standard, concluding that “the applicants have made a strong showing that the challenged restrictions violate ‘the minimum requirement of neutrality’ to religion.” And while the Court acknowledges that the government has a compelling interest in slowing the spread of COVID-19, it also points out that the limitations put in place on churches and synagogues “are far more restrictive than any COVID-related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.” In short, the restrictions are not narrowly tailored enough to satisfy strict scrutiny and justify the “irreparable harm” caused to the petitioners by denying them their First Amendment right to free exercise of religion.
Reckoning with the arguments of the majority is not what Greenhouse set out to do, so she doesn’t even try to poke holes in the reasoning of the opinion or amplify the message of the dissenting justices. Instead, she resorts to lazy assertions that she knows will please her readership. According to Greenhouse, Justice Barrett, by signing on to the opinion, “chose to align herself with what I call grievance conservatism,” which she defines as conservatism “fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.”
Diocese v. Cuomo never comes up again in the piece, as Greenhouse proceeds to air some grievances of her own. Among other things, she takes issue with Justice Alito’s recent speech to the Federalist Society, a lawsuit challenging Kentucky governor Andy Beshear’s attempt to bar in-person instruction in both private and public schools through executive action, and Justice Thomas’s recent opinion concerning the denial of certiorari to Kim Davis. Feebly trying to tie Barrett back into the piece, Greenhouse even wonders aloud whether she’d have signed Thomas’s missive if she’d been seated on the Court in time.
This is what Greenhouse gets paid for: Flattering her readers with the notion that they’re right and their opponents are wrong, rather than providing sound legal analysis. It’s ironic that someone whom we’re meant to respect as one of the country’s most reputable legal commentators spent her column on conservative grievance politics — a phenomenon that surely exists, but not in the forms she suggests — whining instead of persuading. We should all be thankful that her own brand of grievance politics is confined to the Times, while the more thoughtful likes of Justice Barrett sit on the bench.