Here’s How Trump’s Supreme Court Will Put the Screws to President Biden

The Supreme Court declined to step in to block a school closing Executive Order by Kentucky's Democratic Governor Andy Beshear.  But, David Lurie argues, the dissents of Samuel Alito and Neil Gorsuch are warnings of bad road ahead. - GWC

Here’s How Trump’s Supreme Court Will Put the Screws to President Biden

by David R. Lurie

The apparent eagerness of some justices to teach a lesson to “Democrat” governors—and by implication, the incoming Democratic president—must have been whetted when former White House Counsel Don McGahn (who was largely responsible for selecting many of Trump’s judicial nominees) submitted a brief on behalf of Mitch McConnell and other GOP Senators. McGahn suggested that Beshear—who, along with his wife, is a church deacon—has a systemic “lack of regard for Free Exercise rights.” McGahn conveniently omitted the fact that, even as Beshear imposed other restrictions during the pandemic, he had actually eliminated all restrictions on attendance at worship services.

The Supreme Court, however, chose not to immediately enjoin Beshear’s well-founded emergency health measure. Yet, the court’s decision declining to impose an emergency bar on Beshear’s mandates was notably far from definitive. The unsigned majority opinion emphasized that the governor’s order to cease all in-person schooling was set to expire in a matter of days, and furthermore, that some of the arguments challenging the order’s constitutionality had not been properly presented.

The decision went on to indicate that the plaintiff religious schools are welcome to reassert their challenges again “if the Governor issues a school-closing order that applies in the new year.” Justices Gorsuch and Alito each issued dissenting opinions (which both joined) underlining, in Alito’s words, that “no one should misinterpret that denial as signifying approval” of the lower appellate court’s decision adhering to long-standing Supreme Court precedent, or of the lower court’s deference to the scientifically grounded judgement of an elected governor. Rather, Alito explained, the “Court’s order[] . . . [was] based primarily on timing.” For his part, Gorsuch emphasized that Beshear had chosen to allow people in Kentucky to go to concerts, while preventing them from “pray[ing] together in a classroom,” and argued in favor of vacating the denial of the injunction, and returning the case to the lower courts for further consideration under the “proper legal standards.”