Closed for business If hard cases make bad law, emergencies make even worse law. Our case books are littered with awful judicial decisions authorizing presidents and governors to violate core constitutional rights in the name of coping with crises. President Franklin Delano Roosevelt’s decision to intern more than 100,000 Americans of Japanese descent following the attack on Pearl Harbor was upheld by liberal justices. President Abraham Lincoln’s decision to detain citizens and deny them access to the writ of habeas corpus was upheld during the Civil War. Now that that we are experiencing a pandemic crisis, if history is any guide, we can expect some bad decisions. Consider the recent decisions of the Supreme Court to deny emergency relief to churches that have been subjected by states to restrictions that are more onerous than to casinos and other secular institutions and businesses. The churches sought emergency relief under their First Amendment right of the free exercise of religion. The Supreme Court, in two 5-4 decisions, has denied that relief, with the swing vote being cast by the deeply religious and strongly conservative Chief Justice John Roberts, who joined the four liberal justices. The other four conservative justices dissented in […]
