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Midnight Ruling Exposes Rifts at a Supreme Court Transformed by Trump


The ruling issued late Wednesday night said that Mr. Cuomo’s strict virus restrictions — capping attendance at religious services at 10 people in “red zones” where risk was highest, and at 25 in slightly less dangerous “orange zones” — violated the First Amendment’s protection of the free exercise of religion.

The majority opinion was unsigned, but Ross Guberman, an authority on legal writing and the author of “Point Taken: How to Write Like the World’s Best Judges,” said he suspected that its principal author was the newest justice.

“My money is on Justice Barrett,” Mr. Guberman said, pointing to word choices that echoed her opinions on the United States Court of Appeals for the Seventh Circuit. Among them, he said, was “the concession that justices ‘are not public health experts,’” and “the taste for ‘And,’ ‘But,’ and ‘show.’”

The unsigned opinion was mild and measured, which is also characteristic of Justice Barrett’s judicial work. It took issue with what it said were Mr. Cuomo’s unduly harsh restrictions, which had been challenged by, among others, the Roman Catholic Diocese of Brooklyn and two synagogues, the latter of which had argued that Mr. Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”

The majority opinion said less restrictive measures would work.

“Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue,” the opinion said. “It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the state allows.”

The opinion said the state had treated secular businesses more favorably than houses of worship.

“The list of ‘essential’ businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities,” the opinion said.

The most notable signed opinion came from Justice Neil M. Gorsuch, Mr. Trump’s first appointee. His concurrence was bitter, slashing and triumphant, and it took aim at Chief Justice Roberts, whose concurring opinion in the California case in May had been relied on by courts around the nation to assess the constitutionality of restrictions prompted by the pandemic.



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