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SCOTUS Needs to Decide Law, Not Just Fix Errors

Dec. 3, 2020, 9:00 AM

Law students learn right away that the job of the U.S. Supreme Court is not to correct errors made by the lower courts, but to decide important question of federal law.

Lately the court has been in the error correction, not law deciding, business, with the most recent example being its 5-4 ruling Nov. 25 overturning restrictions on the number of persons who can attend religious services in New York in Roman Catholic Diocese of Brooklyn v. Cuomo

Much attention has been paid to the fact that this was a “win” for the conservatives on the court, but my concern is not for who won, but whether the court should have decided the case at all.

Briefly stated, the plaintiffs—Roman Catholics and Orthodox Jews—sued because New York had imposed limits on the number of indoor worshipers in order to slow the spread of the coronavirus. The plaintiffs argued that the restrictions were so unreasonable as to violate their First Amendment rights to religious freedom.

Everyone agreed that states may take measures to prevent the spread of the coronavirus and that the state could not single out religious groups for special restrictions. It was also undisputed that the limits were severe, but so was the health crisis.

The plaintiffs said that they were unfairly treated as compared to other places, such as big box stores, and the state responded by analogizing religious gatherings to movie theaters, which were closed entirely. The plaintiffs focused on the numbers of people in the location, and the state countered by pointing to the length of time that the attendees spent in close proximity and the dangers of spreading the virus from singing.

The trial judge heard the witnesses, listened to the lawyers, read their briefs, and reviewed the relevant documents, and concluded that, on balance, the plaintiffs had not made a sufficiently strong showing to entitle them to relief. They immediately appealed, and a three-judge panel denied their request for an emergency order but set an expedited briefing schedule.

At that point the plaintiffs sought Supreme Court review and were rewarded with a pre-Thanksgiving order granting them the access they requested until the court itself decides otherwise. The important question is not whether the Supreme Court reached the right conclusion, but whether it should have rendered a decision at all.

No Dispute Over Constitutional Issues

As I read the six opinions, there were no disputes over the constitutional principles at issue. The state had its right to halt the virus and the plaintiffs had a right to worship. Neither right was unlimited, and the only issue in the case was whether the state had reached a reasonable balance in the lines that it drew.

I have no independent opinion on that question, but I have no reason to believe that the judge who denied the request for relief from the limits, and the three appellate judges who agreed, came to the wrong conclusion, let alone a plainly erroneous one. Nor would I take a different view if the rulings had come out the other way.

Thus, when the case got to the Supreme Court the question should have been, did both lower courts misapply the undisputed law so badly that it was necessary for the court to intervene? If the court adhered to its role as law decider, not error corrector, it would have said, no thanks, and denied review.

At least since the start of the Trump presidency, the Supreme Court has increasingly intervened to set aside lower court rulings with which it disagreed, but this case seemed to be a singularly inappropriate one for the court to flex its muscles. The law was established, and the real dispute was how to assess the comparisons that each side put forth.

Unlike the district judge, who saw the witnesses and could ask them and the lawyers questions to probe for inconsistencies, the Supreme Court had nothing but paper. Moreover, the situation was in flux, both with respect to the current danger from the virus and how the governor was responding. Not only did this uncertainty make it more difficult to respond to changes on the ground, but the trial judge was also much better positioned to deal immediately with new developments.

In addition, this dispute was extremely localized, with no reason to believe that other jurisdictions would profit from a Supreme Court ruling.

The apparent eagerness with which the court has jumped in recently to resolve all manner of cases can only encourage more losing parties to ask the court for help. The prospect of a Supreme Court rescue will also remove incentives to seek compromises in the lower courts that both sides can abide.

The court’s vision of itself as a law-decider, not an error-corrector is correct; it needs to adhere to that principle more often, especially in situations like this.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Alan B. Morrison is the Lerner Family Associate Dean at George Washington University Law School where he teaches constitutional law.

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