Mooting Corona Cases Before They Reach the Supreme Court

Blue states played "keep-away" with Free Exercise and Second Amendment cases on the shadow docket.

|The Volokh Conspiracy |

With an increasingly-conservative Supreme Court, progressives have recognized the importance of avoidance: keep important cases away from the Supreme Court to avoid a conservative ruling. This term, New York City took deliberate steps to moot a pending Second Amendment. challenge. The City was eager to defend the law before the Second Circuit, and no doubt agreed with its constitutionality. But the Court decided to play keep-away with the Supreme Court. That strategy was prudent, though likely short-lived. Soon enough, the Supreme Court will grant one or more of the oft-relisted cases. But New York will live to fight another day.

In 2017, the D.C. Attorney General declined to appeal Wrenn v. D.C., another Second Amendment case. The D.C. Circuit declared unconstitutional the District's conceal-carry law. The A.G. stated that the law was constitutional. But worried about an adverse Supreme Court decision:

"Public safety is, and has always been, my paramount concern. I continue to believe the District's 'good reason' requirement is a common-sense, and constitutional, gun regulation. However, we must reckon with the fact that an adverse decision by the Supreme Court could have wide-ranging negative effects not just on District residents, but on the country as a whole."

We have seen a similar keep-away strategy in the Corona litigation.

In March, the Pennsylvania Governor deemed firearm stores "non-life-sustaining businesses." The state was eager to defend that decision before the Pennsylvania Supreme Court. But, as the case was on track for an emergency application to the U.S. Supreme Court, the Governor rescinded his policy. Was this change an attempt to moot the case? Perhaps. After NYS Rifle & Pistol and Wrenn, I have become cynical when officials who favor strict gun control suddenly determine that gun control policies should be abandoned when the Supreme Court may step in.

Last week, two Free Exercise cases followed a similar trajectory (I blogged about them here and here). First, on May 26, the South Bay United Pentecostal Church in California filed an application for injunctive relief with Circuit Justice Kagan. That same day, the County of San Diego adopted a new policy: a limited number of people could meet in houses of worship so long as they comply with certain social distancing guidance. Unsurprisingly, California argued that the appeal is now moot, or at least in flux because of the new policy. As a result, relief should be denied. The church replied:

The Government's primary argument is that their recent actions moot Plaintiffs' claims, and that the Court should not get involved at this stage. But this reveals the main problem with California's position—that the violation of Plaintiffs' constitutional rights is indisputably clear. The eleventh hour attempts by California and Illinois to moot the applications to this Court do not impact the analysis. California is still violating Plaintiffs' fundamental constitutional rights, and millions of Americans across the county are still having their constitutional rights trampled upon.

Let's consider the second case. On May 27, the Elim Romanian Pentecostal Church in Illinois filed an application for injunctive relief with Circuit Justice Kavanaugh. The very next day, the Illinois Governor adopted a new policy that allowed the church to meet, subject to social distancing guidelines. This church also charged the government with trying to moot the case:

Mere hours before his Response was due in this Court, the Governor announced a sudden change in his 10-person limit on religious worship services (Resp. 1, n.1), after vigorously defending his policy in both lower courts, and having announced barely 3 weeks ago that it would be 12 to 18 months before numerical limits on worship services were lifted (App. 6). What changed? The Governor was summoned to the steps of this Court to give an account.

On May 29, the Court denied the Illinois petition with a summary order:

Application (19A1046) denied by the Court. The application for injunctive relief presented to Justice Kavanaugh and by him referred to the Court is denied. The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.

Perhaps changes in California and in Illinois were motivated independently of the litigation. The Illinois policy, for example, was set to expire on May 29. But once again, I am cynical. The governors adopted policies at the last minute that, at a minimum, made it tough for the Court to grant relief. They could have adopted those policies before the courts of appeals, but they chose not to. They played good games of keep-away.

This flux, I think, affected the disposition of South Bay. Chief Justice Roberts's concurrence in South Bay analyzed the new policy, not the policy that was at issue in the Court of Appeals. He stated that "local officials are actively shaping their response to changing facts on the ground." This fact, I think, was key to the Chief's analysis.

In some regards, Justice Kavanaugh's dissent reflected not only the new order, but also the old order. In any event, that 11th hour revision undermined the fact that the government was acting neutrally towards religion. I do not think the proper analysis concerned whether facilities were "comparable." Rather, I think the better analysis considers why and when the government exempted some facilities, but not others.

Let's consider a counterfactual: two weeks ago, tens of thousands of people peacefully amassed in the downtown of a major city to protest the shut-down orders. They marched on public streets, highways, and sought permits to speak at City Hall. Some were wearing masks, but most were not. All were standing in close proximity, shoulder-to-shoulder. I suspect their very presence would have been deemed a public health hazard, and they would have been required to disperse. I cannot imagine they would have been given permission to speak to a crowded gathering at a government facility.

This week, we have witnessed peaceful demonstrations of similar sizes throughout the country. Most–but not all–of the peaceful demonstrators were allowed to assemble. Most–but not all–were wearing masks. And at least in my hometown, people were given permission to march on highways, public streets, and gather at City Hall.

Why were governors and mayors willing to let thousands of people demonstrate today, but were not willing to let hundreds of people assemble in a church a few weeks ago. For sure, you can argue that ventilation is better outside. But that argument only works to a point. The Surgeon General warned that the outdoor protests may yield outbreaks of Corona.

I see a different reason why mayors and governors allowed protestors to assemble without social distancing, but religious parishioners were forbidden to assemble even with social distancing: the officials viewed in-person protests as "essential," but in-person religious service as "non-essential." Judge Sutton stated the issue concisely:

The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.

Governors labelled a constitutionally enumerated right, which was subject to the whims of an eleventh-hour change, as non-essential. They did not think prayer was life-sustaining or soul-sustaining. Do it on Zoom! But we know they labelled demonstrations as essential. That cannot be done on Zoom! They also labelled mundane commercial activities, which were open from day-one, as essential, even where the risk of spread was high. This dichotomy warrants constitutional scrutiny under Smith, as well as Masterpiece Cakeshop. Arguing about whether certain facilities are "comparable" or not is the wrong frame.

NEXT: Today in Supreme Court History: June 3, 1918

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  1. A lifetime of being on the wrong side of history, muttering bitterly about all of this damned progress being effected against his wishes and effforts, must be a sad prospect for a 35-year-old.

    1. What’s the wrong side of history here? Protecting freedom of religion to avoid problems with governments using a particular religion as a rallying point for power consolidation?

      Or perhaps resisting politicians declaring religion unimportant in the eyes of government, even though The People put it there in the First Amendment and told government, not suggested, that it is the highest of importance?

      1. “Or perhaps resisting politicians declaring religion unimportant in the eyes of government, even though The People put it there in the First Amendment and told government, not suggested, that it is the highest of importance?

        The People didn’t do squat with the First Amendment. The legislatures did so. (Congress and the various states’ legislatures that ratified).
        So there’s a big flaw in your narrative of “The People” telling the big bad government not to mess with religion. Of course, the other flaw is that the first amendment does not apply to states, it only limits Congress. It wasn’t until the 14th came along that freedom of religion was applied to states.

        So, Nice try, I guess.

      2. What’s the wrong side of history here?

        Everyone wants their own vision to be the future. In the left’s case that vision is fascism.

    2. I assumed you were older than that.

      1. I assumed he was in his early twenties and living in his parent’s basement.

        1. Always seemed to me like a stale-thinking boomer who probably damaged his brain with LSD decades ago.

  2. Much simpler explanation: the lock downs have always been about politics and virtue signalling (but I repeat myself). No science. No medical necessity. No public safety.

    Releasing the lock downs is another sign of how pointless they are. Every indicator that was used to justify the lock downs is now lower than it was when they were begun, yet the politicians don’t dare admit there is no need; they formulate nonsensical schedules of 25%, then 50%, and so on, for bogus classes of businesses. There is zero science, zero logic behind all this. It is all public safety theater designed to save face.

    1. Indeed. It’s become about control and political conformity. As well as other more devious items.

      1. Also, when did a politician ever admit he was wrong? Both sides.

        1. Reagan conceded during the Contra scandal that mistakes were made.

    2. the lock downs have always been about politics and virtue signalling (but I repeat myself). No science. No medical necessity. No public safety.

      So just about every country in the world is into those things and doesn’t care about science?

      1. Since just about every country in the world is led by human politicians and since human nature is generally applicable across country boundaries, yes.

      2. I don’t think they were virtue signalling then. However, you can argue they are now, by failing to admit that the protests carry a coronavirus threat.

        Notably, though, for all the complaints about the lockdown protests, they weren’t shut down.

        1. The anti-lockdown protests were also not banned.

          Despite the insistence of some here, I’m hearing plenty of hand-wringing about the viral threat, but they also think the protests should not be banned.

          I don’t know that I agree, but I don’t see a double standard.

          1. That letter flagged by slate is pretty bad.

            Basically it argues that we can’t announce the viral threat of the protests independent of the threat posed by racism. Which is just the most PC garbage imaginable.

            We absolutely need public health officials to tell us exactly what the threat of the protests is, independent of their opinions about police racism. And we need them to condemn gatherings that could spread the virus- after all, that’s what they were doing when it was conservatives or spring breakers gathering.

            The fact that some don’t have the guts to do it is, indeed, either virtue signalling or fear of Twitter call-outs.

            1. Sure – that sounds dumb as hell.

              But Prof. Bernstein is making a much wider argument about ant-Trump hypocrisy.

        2. As Blackman noted in his new post, New Jersey issued a summons to a lockdown protest leader and de Blasio shutdown an outside funeral.

    3. The whole Kabuki Theater has one goal — defeating Trump by any means necessary. So too with the current thuggery.

      1. So the conspiracy runs so deep, even Trump is in on it? Did you notice that he’s advocating more thuggery?

        1. The sad thing is that if he sent the 82nd Airborne in with “shoot to kill” orders, and made it clear he was ready to do it as many times as necessary, he’d win re-election in a landslide.

          1. The sad thing is that Ed thinks this is a complement of the electorate.

            Luckily, he’s wrong on both counts.

  3. Josh, excellent analysis.

  4. HEY ERRYBODY!!!

    Prof. Blackman is cynical.

    Do I …. do I faint now?

    1. HEY ERRBOD!

      apedad is hysterical!

      Did he faint?

      1. Isn’t fainting the opposite of hysterical?

        1. I think you can get yourself so worked up that you can faint.

        2. “Isn’t fainting the opposite of hysterical?”

          We’ll defer to your superior expertise.

  5. I guess the questions becomes….How do you counter the game of ‘keep away’? How does SCOTUS stop the cynical manipulation of the district and circuit court systems by politicians and shysters?

  6. The simplest explanation seems to be that there are multiple factors: a combination of fear of litigation mixed with a genuine reevaluation of priorities and what can be done in light of the litigation against them – also, probably a bit of progress made in the capacity to deal with the disease that has led to more reopening generally. As cases get further along in the litigation process, in addition to the aforementioned passage of time being useful in other ways, it also gives parties a chance to think about things more and gives them more attention overall.

    The fact that states were able to adjust their decisions emphasizes the points Chief Justice Roberts made that things are very fluid right now and are adjusting in response to the circumstances all the time. While this means cases are evading review, they also haven’t backslid to the initial policies that prompted litigation in the first place.

  7. Easy answer, challenge the rulemaking, don’t seek to enjoin particular enforcement. The environmental challenges generally don’t wait until the plant is built or modified and then seek an injunction to keep it from operating. If there’s a genuine 1A infringement, that’s enough to support a facial challenge to the reg on procedural or substantive grounds. Not legal advice, in fact, entirely composed by yarrow stick divination.

    Mr. D.

  8. After the riots of the last weekend, no limits on lawful activities should be constitutional.

    All that sweating and touching and shouting tolerated and encouraged by Dem politicians. Yet, you can’t get a haircut in Michigan or go to the playground in NYC.

    1. Last weekend?!?

      Here in the Brave New People’s Republic of Taxachusetts, it’s every night. Boston was looted on Sunday night, Providence, RI (just over the border) was looted Monday night, Brockton on Tuesday night, with another Boston event planned for tonight.

      At least the LA riots didn’t start until after the acquittal — and I’d like to see a prosecutor (or law professor’s) analysis of the case they have here because I’m not so certain it’s a slam-dunk conviction. Not if the department authorizes the knee-on-neck approach and if the autopsy found fentanyl “intoxication” along with methamphetamine — both are known to produce hallucinations, meth particularly notorious for that.

      I’m wondering how many intact barber shops or playgrounds will be left to destroy if the state fails to get a conviction….

      1. “if the state fails to get a conviction”

        Should be easy but Keith Ellison is now in charge of the prosecution so …

        1. I’m not so sure about the “should be easy” part — I’ve seen too many officers acquitted in cases that appeared a lot more solid than this.

          And I wouldn’t be surprised to see Ellison botch this the way the FBI botched the case against The Weathermen.

      2. “and if the autopsy found fentanyl “intoxication” along with methamphetamine — both are known to produce hallucinations”

        So your working theory is that he’s hallucinating being dead?

        1. “Ladies and gentlemen of the jury, on the afternoon in question, the decedent was not the kind and gentle man his friends knew. As medical evidence has stated and as bystanders have told you, he was clearly under the influence of powerful illegal drugs, drugs which are illegal because they are dangerous.

          The officer in front of you was confronted by a violent man in the midst of a drug-induced psychosis. It’s tragic that he died, but this officer did not kill him — it was the drugs that did — and the person on trial here ought to be the schmuck who sold him those drugs.”

          1. That kind of irrelevant smearing of the victim in a closing statement is an ethics violation.

            Real law is not law and order.

            1. If true, I think that would be a valid defense theory and I don’t know that there would be anything objectionable about airing it/

              Of course, in this particular case it’s pretty squarely refuted by the evidence, so I think it’s unlikely you could find 12 people who would consider it reasonable.

              1. Fair enough; I suppose that if true, the violent drug-psychosis theory would make the first paragraph relevant.

                In my trial advocacy class, my first attempt at a close was something similar to Ed’s first paragraph, and my professor just said ‘disbarred!’

                It was an exaggeration, but did drive the point home.

  9. These “protests” are NOT peaceful, nor are they being “permitted” — these thugs are being appeased by the authorities and even that’s not working. There is no Constitutional right to block off major highways, except that the radical left has been getting away with that for over a decade now.

    The problem is that Christians aren’t going to lay waste to the business district. Antifa & BLM will — and hence legal niceties get replaced with pragmatic reality that the Christians can be ignored.

    1. “These ‘protests’ are NOT peaceful, nor are they being ‘permitted'”

      Depends on what you’re talking about. Where there was support by law-enforcement officials, the protests were quite peaceful. In others, where the choice was to disperse the protests by force, there was violence.
      It’s almost like the choice to escalate to violence was made by police. Which is allegedly the problem in the first place.

      1. “Let us loot and burn businesses in peace” is certainly a novel message.

    2. Not every protest is a lootfest, dude. Not nearly every.

      1. Blocking off Interstate Highways is not legal.

        And the other thing you need to think about is that a lot of truckers are “caging” their trailer spring brakes — disabling their emergency brakes — which is inherently dangerous.

        1. If a trailer truck looses the air line from the cab — either the service or the emergency line — all the tires on the trailer lock up. (That’s why you sometimes see tire marks leading over to the breakdown lane.)

          Well what the thugs are doing is jumping up and disconnecting the air line so as to disable the truck — so they can then assault the driver. (Case in point the schmuck who was runover after being between two FedEx trailers.)

          And what the drivers are now doing is disabling the system and relying on just the service brakes, I believe just on the 10 wheels of the tractor. That’s fine if you are on dry pavement — most of your breaking is on the 8 drive wheels anyway — but on wet pavement (or in a curve, etc) that trailer is going to “jackknife” and you’ll have 60,000 lbs taking out all the vehicles in an adjacent lane.

          This stuff is not harmless….

  10. I do not think the proper analysis concerned whether facilities were “comparable.” Rather, I think the better analysis considers why and when the government exempted some facilities, but not others

    I think you are conflating two different cases.

    The first case, at issue in South Bay, is when to open up non-essential businesses. There are no exemptions in this case, and the decision of “why and when” to open up was based comparable safety risks. Thus, the “comparable” and “why and when” standards are one in the same.

    The second case is exemptions from the outset for essential services. Of course, the state needs to explain why some services are essential and others aren’t, and apply that explanation in a neutral manner for religious services. However, Judge Sutton’s argument that if “life-sustaining” services are essential, then neutrality requires that “soul sustaining” services must also be essential, strikes me as very wrong. To the contrary, elevating “soul sustaining” above “life sustaining” gives preference to religious exercise. That may be constitutionally permissible, but it is not constitutionally required under Smith.

    1. Correction:

      To the contrary, elevating “soul sustaining” above “non-life sustaining” gives preference to religious exercise.

  11. This post belongs in the comment thread, not coming from the OP Itself.

    Good lord, what is this? Spinning counterfactual as evidence?

    Does it take so much to wait to see if the policy is changed back before you start crying about pretext? Otherwise you’re just making things up to rage against.

    Not to mention, it’s been noted that your legal analysis seems pretty facile this time.

    1. Oh come on, the governors aren’t so stupid as to put the regulations back in place a week after they were “mooted”. But if there is a second wave come fall they want to keep their powder dry.

      1. Lets wait until we see that then. This future hypothetical bloviating is nothing but partisan hot air until that point.

  12. The whole picture together looks like a coordinated effort to deny Americans our civil rights whenever the opportunity presents itself. We have seen this picture since 2007 at least.

    What is the motive for these actions? I think it’s those people are not like me so their rights don’t matter.

    1. Coordinated? Come on, Ben.

      1. Looks like. Probably not 100%. Probably not 0% either.

        1. Looks like…with what evidence?

          1. “Looks like” requires evidence now?

            1. Or at least some indicator to point to, yeah.

              1. Here is the Minneapolis Star Tribune quoting the state public safety director:

                “Earlier Sunday, state officials said several caches of flammable materials were found both in neighborhoods where there have already been fires and “in cars we’ve stopped as recently as this morning,” said John Harrington, state public safety commissioner. Some of the caches look like they may have been planted days ago and some only in the last 24 hours or so, he said.

                “The fact that we’ve seen so many of them in so many places now makes us believe that this is part of that pattern that shows that this in fact an organized activity and not some random act of rage,” he said.”

                I’m not sure what to think. There have also been reports of bricks getting dropped off that, but a station spot checked some and they were innocuous, so caveat emptor.[1]

                1. 1) This is not a ‘coordinated effort to deny Americans our civil rights whenever the opportunity presents itself.’

                  2) After the ‘pallets of bricks’ nonsense, I don’t believe this merely on the word of Minneapolis authorities.

                  1. Re your 1), I agree. This was in response to your request for ‘at least some indicator’.

                    Re 2), I think I did say ‘caveat emptor’. Out of curiosity, do you suspect Mr. Harrington is too naive to filter bad data he is getting, simply incompetent, grinding a political axe, or what? FWIW, here’s his bio.

                  2. 1) I do not think this is an indicator of an effort to deny civil rights etc. etc. Especially given the Free Expression context of the OP.

                    2) You absolutely did; I did not mean that as a contradiction to you.

                    If I had to guess, From the tone I read, I see it falling into the ‘too good to check’ with a bit of narritivistic speculation thrown in.
                    Standard for humans, but usually better vetted before people in positions of authority talk about it.

                    An anti-protests axe to grind need not be a partisan one. Law and Order primacy knows no party.

    2. What happened in 2007?

  13. “They did not think prayer was life-sustaining or soul-sustaining. Do it on Zoom!”

    God can hear you wherever you are praying, even if it’s on Zoom. So they aren’t limiting your ability to pray or God’s ability to hear you. What, exactly, is the harm here?

  14. I’m not so sure that this behavior needs to be interpreted so harshly.

    There’s always a possibility that state officilas, faced with lawsuits, perhaps losses of similar positions in other courts, perhaps a loss in their own case in a lower court, reach the view that discretion is the better part of valor and perhaps there is enough risk of the plaintiff’s position winning to make a compromise efforts towards addressing their grievances the prudent thing to do.

    We don’t normally people who settle lawsuits that go against there personal views to have bad motives for doing so.

    Compromise has been described as a hallmark of a functioning republic. Looking at compromisers as suspicious, nefarous, ill-motivated hypocrites, is not the only possible way to look at them.

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