NYT's Greenhouse's Fact-Free Flaying of Justice Barrett’s ‘Grievance Conservatism’

December 8th, 2020 7:05 AM

The New York Times’ former Supreme Court-beat reporter Linda Greenhouse is still opining for the paper, and any residual sense of objectivity has been jettisoned, as shown by last week’s screed on the newest member of the court: “Justice Amy Coney Barrett’s Choice -- Will she join the Supreme Court’s grievance conservatives?

Ostensibly, Greenhouse was writing about the recently decided COVID-related religious-freedom Supreme Court case Roman Catholic Diocese of Brooklyn v. Cuomo, but that case was only a peg from which to inaccurately pontificate against pro-religion rulings from the newly conservative-leaning Supreme Court:

Justice Amy Coney Barrett had a choice.

She could provide the fifth vote on the Supreme Court that Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh needed -- and would not have received from the Justice Ruth Bader Ginsburg -- to place a temporary block, in the name of religious freedom, on New York’s pandemic-driven limitations on church and synagogue attendance.

Or she could give that precious fifth vote to Chief Justice John Roberts in the name not only of public health but also of judicial modesty, since the most severe restrictions the Catholic and Jewish organizations were complaining about were no longer in effect and the whole case might well disappear into thin air if the Supreme Court simply stayed its hand.

History will record the choice Justice Barrett made in the court’s Nov. 25 decision as the first moment of fruition for the hopes and fears engendered by her abrupt election-eve ascension to the Supreme Court following Justice Ginsburg’s death in September….


The real significance of the decision lay in the which-side-are-you-on test it posed for the newest justice. I don’t mean the conservative side versus the liberal side. Obviously, she’s a conservative. What matters is that a month into her tenure, she chose to align herself with what I call grievance conservatism: conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.

The embodiment of grievance conservatism is Justice Alito, who in a speech last month to his fellow members of the Federalist Society said that “it pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”

She pivoted to the Court's landmark Obergefell ruling, which found a constitutional right to same-sex marriage, and warned that aggrieved conservatives were trying to scare gays:

Justice Barrett was not yet confirmed when Justices Thomas and Alito issued this statement. I wonder whether she would have signed it. It was pure grievance conservatism, with no effect other than to invite new cases seeking to overturn Obergefell, and to strike fear in some parts of the L.G.B.T.Q. community that it could happen. It won’t. But I’m certain that the pressure on the court will only grow.

There’s no neutral ground: The Supreme Court has become a prize in a war over how far the country will go to privilege religious rights over other rights, including the right not to be discriminated against….

More pithy lines emerged from Greenhouse, who is now at Yale Law School.

….Are Trump-appointed judges supporting religious claims as a matter of personal faith, or has voting to uphold religious claims become a kind of judicial MAGA cap, a mark of political identity?

At this moment’s legal and political inflection point, the answer may not matter. If Justice Barrett wants company, she clearly has plenty. And the rest of us have plenty to worry about.

National Review’s Isaac Schorr revealed the emptiness behind Greenhouse’s supposedly shrewd analysis.

.…As a judicial consequentialist, she is far more concerned with the success of the “blue team” than with the proper application of the law. The petitioners in the case, a Catholic diocese and a Hasidic Jewish group, had both mandated masks, limited attendance to between 25 and 33 percent of capacity, and willingly complied with all other government guidelines. So they certainly weren’t challenging the ability of the state of New York to place any “pandemic-driven limitations on church and synagogue attendance.” No, what they were challenging was the disparate treatment of religious institutions as compared with secular ones….

Before Barrett’s confirmation, Greenhouse drew up some helpful hypothetical questions for (Democratic) members of the Senate Judiciary Committee to ask Barrett, including: “So my question to you is: Will you recuse yourself from abortion cases on the Supreme Court’s docket? If not, why not?”

Greenhouse marched for abortion in 1989 and whacked the George W. Bush administration during a commencement address at Harvard in 2008, including, naturally, a rant on abortion: “And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism."