Things are different now. Justice Amy Coney Barrett, known for her careful fidelity to the Constitution, may be sympathetic. Nowhere does the Constitution grant officials unlimited power to curb fundamental rights.
The sheer length of the pandemic is also likely to make a difference in the court’s approach. The court appears poised to step in against the repeated assaults on religious freedom. “It pains me to say this,” Justice Samuel Alito observed in a speech to the Federalist Society last week, “but in certain quarters, religious liberty is fast becoming a disfavored right.” Certainly, it’s disfavored by Cuomo and his pals in the technocratic elite.
Ultimately, there is more at stake even than religious freedom. As Alito warned, the kind of lawmaking by executive fiat that is occurring in states like New York “has resulted in previously unimaginable restrictions on individual liberty.”
Americans need to demand that their legislators limit the emergency health powers being wielded by governors. State lawmakers need to limit their duration and scope. Some states are already doing so, including Michigan and Wisconsin. Unfortunately, in a one-party state like New York, there’s no will to buck the governor.