Justice Ginsburg: I have asked for space on your blog to address the recent decision* by my erstwhile colleagues on the Supreme Court. I understand the dismay that many of you feel when the Court sided with religious establishments over New York’s right to enact regulations for the benefit of public safety. However I want to assure you that this decision was not politically motivated but presented in fact real issues concerning our rights under the constitution, namely freedom of religion and the right to peaceably assemble.
The question then becomes one of balance. How do these constitutionally protected rights stand up against the necessity of restriction for the public good?
How many of you have known a young adult bound and determined to destroy him or herself with wrong-headed decisions - at least by our lights? We have to realize that we are powerless in the face of their inalienable right to make bad decisions. Sometimes the right to decide takes priorty over the regulation of consequences.
However, when decisions impact the lives and wellbeing of others, then a line must be drawn, and it is a question of discernment, not necessarily legal reasoning, as to where that line should be.
I disagree with the decision. Let me be clear about that. But I support the right of the justices to state their arguments which they did in coherent fashion.
They determined, in effect, that curtailing the constitutionally guaranteed rights in question was not the same as allowing someone, under the guise of freedom of speech, to falsely shout fire in a crowded theater and thereby cause a panic. In other words, the risk did not rise to a level necessary to restrict constitutionally established inalienable rights.
The dissent, however, said, in effect, that your right to swing your fists ends when it connects with my nose and, thereby, determined that the constitutional rights in question were appropriately curtailed in the regulations promulgated for the safety of the community.
In other words, the majority and the dissent saw the matter balanced at different points on the spectrum. It now falls to the community or the locals governments to do what they can to provide information sufficient to allow those who do not want to be exposed to the virus to take appropriate precautions as best they can.
This is not a constitutional disaster, though I believe it was wrongly decided, and it may in fact contribute to the public health crisis. It is a decision which could be argued several ways, and our way lost. It will not be the last time this happens.
What you want to watch for is a decision which clearly goes against the facts in evidence. I will be watching with interest to see how the Court handles question of election fraud where evidence and legal theory are clearly absent. Here is where the tale will be told and who will be doing the telling as we go forward with the cases currently on the Court docket.
Save your energy for a battle worth fighting. You must allow for different points of view based on rational evidence even when you lose. We must recognize that there will be a retrenchment of government power in favor of individual liberties going forward. It remains to be seen as how the concept of individual liberty is construed.
It is within your power to support those legislators who advocate for your point of view, and I advise you to do so with energy and conviction.
November 27, 2020
*Roman Catholic Diocese of Brooklyn v. Cuomo, November 25, 2020.