Another was the game of Hot Zone Whac-a-Mole that Cuomo tried to play with the court as the case was working its way through the legal system, by switching the affected areas’ designations back to “yellow.” That was enough to persuade Roberts and other dissenters that they could leave well enough alone, at least for now. But, as Gorsuch noted, one also has to be modest about judicial modesty: “We may not shelter in place when the Constitution is under attack. Things never go well when we do.”
That’s a thought that ought to inspire everyone, liberals most of all. Imagine slightly different circumstances, in which, say, a conservative governor of a red state had used pandemic concerns last summer to impose draconian limits on public protests, and that he had done so using color-coded maps that focused on denser urban areas and that seemed to apply most restrictively to predominantly Black neighborhoods.
Now imagine this governor had, at the same time, loosened restrictions on large gatherings such as motorcycle rallies, business conventions and football games — on the grounds that these were essential to the economic well-being of the state. Any objections?