Justice Gorsuch comes roaring out by taking a flamethrower to the Chief Justice — not on just one issue but on two. To me, his language borders on intemperate and likely to leave a mark on the relationship between the two. I agree with Gorsuch on the merits of his points, but I’m still a bit taken aback by the force with which he advances them here on a petition for emergency relief. //

Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.

As someone who has read a lot of Supreme Court cases over more than three decades, this is close to “blow torch and pliers” territory between two Justices ostensibly aligned from a jurisprudential point of view. This five-vote majority — not coming from a case before the Court but rather in response to an emergency petition — changes everything now pending in lower courts regarding coming challenges to lock-down orders that may be imposed by governors in the days and weeks ahead.

Do not overlook Gorsuch’s view that “shelter-in-place” orders are an “attack” on the Constitution. This is a religious liberty case, but the overt hostility of Justice Gorsuch is revealing, and I suspect it is going to extend to other burdens imposed on individual liberties by the orders.