Beyond Justice Gorsuch's drive-by kneecapping of the Chief Justice, there are some interesting and, in my view, unfortunate items to take from Diocese of Brooklyn v. Cuomo for those interested in local rules, public health, and future jurisprudence. https://twitter.com/stevenmazie/status/1331834558992494592

While the per curiam's muddled discussion is unclear, J. Gorsuch's concurrence and J. Alito's Fed-Soc speech/RNC rally makes clear the Court majority has abandoned Jacobson v. Massachusetts (1905) style deference to state and local governments in public health emergencies.

That abandonment and debate on the wholly uncontroversial statement by the CJ that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to politically accountable officials of the States ‘to guard and protect" suggests stronger challenges ahead.

As Justice Sotomayor correctly notes, the oddity of the NY challenge was that churches were treated with greater favor than, say, theaters, lectures, and other congregations. Liquor stores, et al., being a red herring based on very different activities therein.

The Court provides no clear measure or balance for the public health emergency standard other than its own substitution--and a flawed one--of scientific evidence offered by New York State medical officials.

So, what's next? Look for more conservative circuits, like our own CA8, and district courts to enter a "know it when you see it," approach to challenges to state/local emergency orders. Today's strict scrutiny rejection will be tomorrow's rational basis/arbitrariness challenge.

Each state and local government should review its emergency orders based on the substantial shift w/the passing of The Hon. RBG and, counterintuitively, eliminate specific references--even if favorable w/looser restrictions--to activities like religion, speech, and education.

We now see the Kavanaugh Court. And, like Justice O'Connor (of 'affirmative action is okay for now, but prolly not in 25 years' fame) or Justice Kennedy, finding manageable standards for local governments and district courts will be a guessing game.

Shame, b/c in times of crisis and hundreds of thousands of preventable US deaths, insincere debate on health risks at places where you sing and sit for an hour+ w/others vs picking up a pack of bubble gum at the corner store (where you stay for 90 secs) means more will fall ill