Supreme Court

Justice Barrett's First Opinion as a Justice

The newest justice makes her debut in a brief concurrence on the shadow docket.


Last night, a divided the Supreme Court enjoined the enforcement of California's prohibition on indoor worship services due to Covid-19 in South Bay United Pentecostal Church v. NewsomThe Court effectively split 3-3-3. Three justices would have denied all relief (Kagan, Sotomayor, and Breyer), and three justices (Gorsuch, Thomas, and Alito, albeit to a slightly lesser degree) would have gone farther and enjoined additional portions of California's Covid restrictions on houses of worship. The Court's grant of partial relief pending the petition for certiorari was endorsed by the three remaining justices (Roberts, Barrett, and Kavanaugh).

My co-blogger Josh Blackman has a compete rundown of the opinions below. Among the opinions was Justice Amy Coney Barrett's Supreme Court debut. She authored a short opinion concurring in the partial grant of application for injunctive relief, joined by Justice Kavanaugh. This was her first signed opinion since joining the Court last fall.

It is very brief, so here it is:

I agree with JUSTICE GORSUCH's statement, save its contention that the Court should enjoin California's prohibition on singing and chanting during indoor services. The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record. As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue. As the order notes, however, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.

It is common for a justice's first majority opinion to involve a relatively minor matter. The junior-most justice is not going to get her choice of cases, and Chiefs often assign relatively sleepy and non-contentious matters for a new justice's debut. Yet new justices can still write separately, and Justice Barrett chose to do so here, in a case off the Court's shadow docket, before writing her first majority. This may be unusual, but it's hardly unprecedented.

Fun fact: Chief Justice Roberts' first opinion as a judge on the U.S. Court of Appeals for the D.C. Circuit was an opinion dissenting from a denial of rehearing en banc.

NEXT: Today in Supreme Court History: February 6, 1858

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  1. Three justices would have denied all relief (Kagan, Sotomayor, and Breyer),

    A) For any objective point of view, it is obvious that religious services were being treated vastly more restrictively. Hostility to religion would be the obvious underlying justification.

    B) Kagan made a point that the SC Justices were not scientists, and therefore should defer to scientists. Yet, she made no effort to distinquish why the same Covid Science is different for a religious activity vs non religious activities.

    1. “Yet, she made no effort to distinquish why the same Covid Science is different for a religious activity vs non religious activities.”

      Because they use “science” as a flag to wave, not actually as a way to knowledge. She means she will defer to whomever is chosen by leftists to hold the “science” flag.

      1. In this case, “science” refers to the science has been introduced into the record by the parties to the case.

        And of course Kagan didn’t argue that the science was different for a religious activity vs. a non-religious activity. Kagan writes that, “the State’s policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger.” She’s using the same science to judge the risks from religious and secular activities.

        1. Except Kagan is not doing what dissent is saying she did

        2. “Science” here is referring to people who don’t practice science.

          Regardless, Constitution doesn’t say “except when the scientists or experts say differently”

    2. You just have to have a functioning brain to see they were being treated unfairly

      But alas Kagan does not have one of those,

  2. These decisions make me so glad that Ginsburg is dead. May her memory not be a blessing.

    1. People deservedly destined to spend the rest of their life on the losing end of America’s culture war — conservatives, poorly educated bigots, superstitious clingers, disaffected Republicans — must take their small comforts where they find them.

      (I had heard Dave Edmunds was awkward onstage, but he was great the night I saw him. Another guitarist — local kid — was on the bill that night. The next month, I saw the Fabulous Thunderbirds across town and that same guitarist walked onstage when one of the Thunderbirds said, toward the end of the show, ‘I hope you don’t mind but I promised my mama that my little brother could get up on stage with us and play a few songs with us.’

      That guitarist was Stevie Ray Vaughan.)

      1. “People deservedly destined to spend the rest of their life on the losing end of America’s culture war — conservatives, poorly educated bigots, superstitious clingers, disaffected Republicans — must take their small comforts where they find them.”

        It’s nice to see the two of you relating so well. Opposite political views, similar personalities. It just warms my heart.

        1. Conservatives aren’t on the losing end so to speak. They don’t say there shouldn’t be change. They believe there is value in established tradition, and that it should only be changed after much deliberation.

          1. How much more deliberation will conservatives require before they ditch their diffuse bigotry?

            The racists, gay-bashers, misogynists, Muslim-haters, and other bigots have lost the culture war. But they still animate the Republican Party, and they are conservatives.

            The conservatives are not going to win this time, much as the voices of ignorance, superstition, and intolerance have lost when targeting groups based on skin color, religion, nationality, perceived economic pressures, or “established tradition.” Those targeted have included the Irish, Jews, gays, Asians, Catholics, women, Blacks, agnostics, Hispanics, Italians, eastern Europeans, other Asians, atheists, and others — most of America, at one time or another.

            What makes America great is our liberal-libertarian mainstream, which ensures that the clingers do not prevail in America, not over time. And our latest batch of bigots — QAnoners, birthers, militia members, Republicans, white nationalists, conservatives, white supremacists, gay-bashers — seems nothing special, its reliance on the charms, insights, and integrity of Donald Trump notwithstanding.

            Conservatives are the losers in modern America. Some are smart enough to recognize it. That is why they are so disaffected and desperate.

            1. The hobby horse rides again. Learn a new song, RAK.

      2. Kirkland, Gavin Newsome likely to be recalled is not our side losing…

    2. She was a terrible justice seems like Kagan is pushing for that honor now.

      1. “She was a terrible justice seems like Kagan is pushing for that honor now.”

        sotomayer has that honor locked up

  3. Having Barrett on the court saves us all from Roberts’ nonsense.

    Of course Kagan, Breyer and Sotomayor are united. The left can always count on them to support whatever oppression Democrats come up with. When leftist justices make decisions, constitutional protections always fall just short of actually protecting anyone from the left’s predatory schemes.

    1. As opposed to supporting oppression of gay people and so on.

      1. Whataboutism and ancient history grievance-pushing together in one phrase. Congrats on your attempt to aid oppression by changing the subject.

      2. Who is oppressing gay people? I missed that decision

      3. Telling a gay man he doesn’t deserve a “marriage” license to solemnize the fact that he erupts in another man’s tuchis is not “oppression.”

  4. Did she have to submit this opinion to her husband for approval first?

    1. Did Kagan have to submit her dissent to her wife/ first.

      Both statements are inappropriate.

      1. You may wish to ignore the “handmaid” issue.

        Reasoning, modern, decent, educated Americans may not.

        1. How would you know that? Are you on their mailing list? Is there a RMDEA newsletter?

        2. RAK, you never can resist displaying your bigotry

      2. She belongs to a charismatic group that teaches that women must defer all questions to their husbands. My question is a legitimate one.

        1. I’d like a cite for the “all questions” part of your assertion. What if he told her to worship an idol?

          1. Here’s their Web site so you can look for yourself.


              1. The site was airbrushed in recent years. Their men were called “leaders” and women “handmaids” until recently.

                If Barrett’s husband told her her opinion was incorrect, I think she would obey. (Submit to your husbands in “everything”. Ephesians 5:24.)

                1. And you think they got the term “handmaid” from Margaret Atwood? I don’t think even Atwood herself claimed her use of the term was original – but I presume that as a biblical authority you recognize the actual origin.

                  As for disobeying illegal or ungodly orders from one’s superior, you can double-check that yourself, or consult the life of St. Thomas More, etc.

                  1. But I do her husband an injustice by assuming, even for argument’s sake, that he would give such an order. It would be like assuming a father would order his daughter to cheat on an exam, etc.

                    1. If he thinks an order is ungodly in some way, he has the duty to speak, and his word controls over the wife’s. St. Paul is very clear about that.

                    2. I regret to say you’ve moved the proverbial goalposts.

                      Your original claim was: “She belongs to a charismatic group that teaches that women must defer all questions to their husbands.”

                      Now let’s assume (which I think is totally hypothetical) that he doesn’t want his wife to be a judge. In that case she should resign.

                      But he can’t tell her to be a judge and not-a-judge at the same time, which would violate the law of noncontradiction. Holding the office of judge means making decisions according to the law and evidence as the judge understands them, not taking orders from outside.

                      Even the most patriarchal of patriarchs can’t issue an order which contradicts itself.

                      And of course I think it’s fairly insulting to assume without evidence that her husband would be disposed to behave in such a way.

          2. Let’s cut to the chase – you don’t actually have evidence that the organization “teaches that women must defer all questions to their husbands.” You said it because you strongly *feel* that it must be true.

        2. You’re talking nonsense. Exaggerating and interpreting what you do NOT know for the purpose of polemics. When you have an honest defense of your bigotry, let everyone know.

    2. “Did she have to submit this opinion to her husband for approval first?”

      Typical leftist bigotry. Anyone with any decency would be ashamed.

      Leftists will applaud you though. If not publicly, then quietly to themselves.

      1. Open wider, Ben. You know you will be swallowing more progress arranged by your betters. That is why you are so cranky and disillusioned.

        Replacement will be your only respite.

        1. Inserting things where they shouldn’t can backfire. Like it getting bit off.

          1. Leftists are also happy to tolerate and go along with below-the-sewer individuals like Rev. No left-of-center evil is too intolerable for them. At most they will change the subject because they don’t think the communications strategy advances their goals.

            But don’t you dare even arguably commit a microaggression against one of the people whose lives matter.

  5. “The Shadow Docket” sounds like a John Grisham novel. Is he still around?

    1. Yeah he is I believe.

      I usually hate reading fiction in general (it seems so … artificial if that makes sense) but his work I ususally enjoy a lot.

  6. Another example of know nothing, Ivy indoctrinated, bookworm lawyers making national policy about a complicated technical subject.

  7. “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral”


    I like this justice — she’s all but saying “if you can document what we both know is the case, I’ll rule in your favor.”

    The untold scandal is that the movie/TV industry is being permitted to ignore all these restrictions. She’s just saying that you gotta do it by the book and document your claims.

    1. I’m hesitant to ask this, but a pipe organ moves a lot of air — it’s how it works — and what does that do?

      1. You’re just pointing out that NONE of this has anything to do with science. If it did after a year of these ridiculous restrictions we would have conquered Covid. But instead we just get more restrictions which accomplish nothing in regards to the disease.

        Which is not happening by anything but herd immunity. Which is why we are not extinct. Science!

        1. The question is not “extinction.” The question is how to avoid having fewer people die of COVID.

      2. Probably not much. The bellows are not full of COVID-laden moist air, after all. Having worked on organs for a bit in my youth, I suspect that the volume of air moved is rather modest and localized.

      3. Ed,
        You move a lot of air and it usually does nothing. But you asked a question that deserves an answer.
        Air is moved through the inside of pipes that have not been touched by human hands post-fabrication. The pies do NOT take air into the organ. The air from the compressor is filtered. Therefore the pipes contain NO fomites.
        Hence the organ cannot spread the SARS-Cov-2 virus

  8. By the way folks, choristers can and do sing while wearing a mask.

  9. “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral”

    The activity should not be the issue. The environment in which the activity is conducted determines whether or not it is conducive to spreading the virus. Singing outdoors while distanced is going to be far safer than singing indoors, even if distanced, unless that indoor space is extremely well-ventilated.

    We don’t know what environment the singing is done for Hollywood sound tracks (at least I don’t). But I suspect that a lot of precautions are being taken that churches simply might not be able to require or even afford, such as pre-event testing.

    It’s really hard to make comparisons of risk in the absence of relevant facts. But the idea that, if singing is allowed in any secular setting, it should also be allowed in churches is hardly “neutral.”

    1. “The activity should not be the issue. ”
      Just right. people should be at least 6 and preferably 10 feet away from anyone not in their household. Signing and reciting should be done through masks. It is not hard and it is done, even by elite chiors.

  10. I have a modest prediction:

    Roberts’ quote about the need for courts to defer to elected officials on matters of public health will appear in a future abortion decision, written by one of Roberts, Kavanaugh, or Barrett, and joined by all three of them.

    1. I also suspect Justice Battett is willing to rule against churches based on this argument now in order to preserve its force, and her claim to deciding based on neutral principals, then.

  11. Roberts is a piece of shit who should impeached.

    1. Someday learn to make intelligent comments instead of crass whimpers.

  12. It sounds like Barrett and Kavanaugh agree with Gorsuch, but aren’t willing to take for granted the assertion that Hollywood is being given a special exemption. That fact needs to be in the record, and then they get the injunction.

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