Earlier this year, Justice Neil Gorsuch wrote one of the finest opinions in the Supreme Court’s recent history. His majority ruling in McGirt v. Oklahoma recognized that a large swath of that state is still tribal land. It displayed the moral and legal clarity that Americans expect from the high court. Gorsuch and four other justices rejected arguments that Oklahoma’s century of disregard for tribal sovereignty had effectively invalidated it. “That would be the rule of the strong, not the rule of law,” he wrote.
His perceptiveness in that case and others makes his concurring opinion in Roman Catholic Diocese of Brooklyn v. Cuomo that much more lamentable. In a 5–4 vote, the court constrained New York Governor Andrew Cuomo’s power to impose occupancy limits on houses of worship in New York on public health grounds. “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the majority said in an unsigned opinion. “But even in a pandemic, the Constitution cannot be put away and forgotten.”
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