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Chief Justice Roberts and Injunctive Relief

The Chief Justice's votes against injunctive relief for churches, voters, and those on death row are of a piece.

|The Volokh Conspiracy |

Last Friday, the Supreme Court denied a Nevada church's application for an injunction against Nevada's restrictions on religious gatherings, adopted to help prevent the spread of Covid-19. Over the dissent of four justices in Calvary Chapel Dayton Valley v. Sisolak — Thomas, Alito, Gorsuch and Kavanaugh—the Court rejected the Court turned away an application for injunctive relief premised on the claim that Nevada is subjecting churches and other religious institutions to more onerous restrictions than casinos and other secular institutions. (Josh Blackman has a rundown of the dissenting opinions here.) The four liberal justices, and the Chief Justice, refused to grant the injunction.

This is not the first time the Chief Justice has turned away a religious organization's challenge to state restrictions on religious gatherings. South Bay United Pentecostal Church v. Newsom produced a similar 5-4 split on the Court. Although the Chief Justice voted with the Court's other conservatives in this term's big religious liberty cases—Espinoza and Our Lady of Guadalupe School— he has not joined them in supporting injunctions against state laws that appear to discriminate against religious institutions by imposing less stringent restrictions on secular institutions. What gives?

Calvary Chapel and South Bay are not the only two cases in which the Chief Justice has rejected injunctive relief on the Court's shadow docket this term. To the contrary, he has been doing it quite a bit, which would suggest his votes in Calvary Chapel and South Bay have little to do with his views of religious liberty and free exercise.

In just the past few months, the Chief Justice has opposed injunctive relief rather consistently across the board. He has voted to vacate lower court injunctions obtained by death row inmates seeking to stop their executions and against lower court injunctions altering state voting rules in Wisconsin and Florida. These votes have upset liberal commentators about as much as the Chief Justice's votes in Calvary Chapel and South Bay have upset some folks on the Right.

The Chief Justice's critics on both the Left and the Right both assume that the Chief Justice's rejection of injunctive relief is a proxy for his view of the merits in the underlying disputes. I think this is a mistake. More likely, the Chief Justice's rather consistent opposition to injunctive relief is another manifestation of the minimalist impulse I discussed here.

The pattern in the Chief Justice's votes is fairly clear: He does not like injunctions. Indeed, he said as much in his opinion concurring in the denial of injunctive relief in South Bay.  Citing prior Court decisions, the Chief explained that a request for an injunction "demands a significantly higher justification" than a request for a stay or other more temporary relief. As the Chief explained, the power to issue an injunction should only be used "where the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances" (internal quotations omitted, emphasis added).

This is nothing new for the Chief. He has long been critical of the speed with which some lower courts are willing to grant injunctive relief. Just consider his opinion in Winter v. NRDC in which he chastised the U.S. Court of Appeals for the Ninth Circuit for adopting "too lenient" a standard for granting preliminary injunctions. This opinion was a shot across the bow of lower courts to exercise greater restraint. Since then, the Chief Justice has largely stuck to his guns.

Agree with him or not, the Chief Justice has been rather consistent in his skepticism of injunctions, both those favored by conservatives and those favored by progressives.

The point of this post is neither to defend nor criticize the Chief Justice. It is rather an attempt to provide a more accurate account of his jurisprudence than is provided by much political commentary. As I see it, some commentators are too quick to assume political or ideological motivations for judicial behavior, particularly for judicial behavior they do not like. Such accounts do more to obscure than reveal what is really going on. If you overlook the Chief Justice's minimalist impulse, you cannot understand him.

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18 responses to “Chief Justice Roberts and Injunctive Relief

  1. I think you may have a point here. Wasn’t there considerable debate back in 1787 about even allowing injunctions?

  2. Would it be unusual for Justice to give a speech/interview/comment about their approach to judicial decisions outside of a specific case?

    It seems a Justice could easily clarify and take away the second-guessing by being open about how they generally approach decisions – with understanding there is a 100 tons weighing on the word GENERALLY and that each case is unique.

  3. The idea that a Justice actually operates on a consistent philosophy of the law rather than political principles is indeed difficult to take in, but it could be, just maybe the situation here. The CJ’s position in the Louisiana abortion rights case certainly support the view of Mr. Adler. The CJ may be a principled conservative as opposed to opportunistic ones who adopt conservative principles only when it suits their political interests.

    And one final point, it could be that the CJ actually recognizes that a church is different from a Wal-Mart as far as susceptibility to the Virus and that yes, the state does have a legitimate interest in banning in-person church services which are more risky than in-store shopping. Unlike many people who criticized this ruling, could it be that the CJ has actually been in both a house of worship and a retail store and knows the difference? And that yes, a person does not need to go to a house of worship with hundreds or thousands of others to worship in order to be a good Christian.

    1. In these church cases related to the pandemic I think there is a possibility to draw distinctions based on actually similar venues that the states have been sloppy about. Certainly a Walmart or a grocery store is not similar to a church, those are false comparisons.

      However there are similar venues including any venue with fixed seating like theaters, auditoriums, spectator sporting facilities, lecture hall and probably others. As far s I can tell none of these cases nor the executive orders they are based on have made a particularly clear showing of that and suffer from comparing apples and oranges.

      I could be wrong now, but I don’t think so — Randy Newman

      1. My reading on Roberts in the church-coronavirus cases is that he is acting the way Rehnquist would have acted- old school, defer to the government during a crisis conservative.

    2. I believe the most important difference between a church meeting and in-store shopping is the singing. We have known since early onset of the virus that choirs are particularly dangerous — people standing close together and belting out songs causes much fluids in the air. In Seattle, several people died that way before all choirs caught on and ceased operations. So, I believe a minimalist approach to government regulation in this case could have allowed church services to continue — provided there is no singing and a measure of social distancing. Roberts should have sent the case back for consideration of an alternative public policy that would meet health standards but still respects the right of congregations to worship together.

      1. There may be something to that but what about a sporting event where people routinely cheer.

  4. Do we think that this is an issue with injunctions generally, or more specifically with the Supreme Court jumping in on a case that is still developing?

    1. “We”? Are you a nurse, perchance?

  5. Big article on Roberts from CNN has what looks to my untrained eye some pretty high-level leaks in it.

    Someone up there is none to happy with the Chief, and willing to spill some tea over it.

    1. I hate to give CNN the clicks. Could you give us the 30,000 ft version?

      1. Happy to. As a gossip. As a Court fanboy. And as someone who has no much love for CNN:

        Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights.

        And in one instance, Roberts wrested the majority opinion away from a colleague, Justice Clarence Thomas, during the internal opinion-drafting process after votes were taken, according to sources. [Later text makes it clear this is the Georgia copyright case]

        the new reporting reveals that unlike Roberts’ 2012 move to uphold Obamacare and separate 2019 action to ensure no citizenship question on the 2020 census, Roberts’ action on DACA was not a late vote switch. He put his cards on the table soon after November oral arguments in the case and did not waver, sources told CNN.


        According to sources, liberal justices believed the pandemic had transformed the situation and wanted the administration to clarify its rules to help places like New York hit hard by the virus in the spring. Roberts was unmoved and believed administration guidance was clear that immigrants could obtain Covid-19 care without consequence to their green-card applications. Other conservative justices agreed.

        1. Interesting. The scuttlebutt was always that it was Kennedy that was the squish with Heller when Stevens circulated his dissent, leaving a lot of gun control in place in Scalia’s revised opinion. It may well have been Roberts. Thanks.

  6. So, Roberts will only act if your rights have been violated for a specific amount of time?

    Can he provide an idea of how long one most be oppressed before they dare bother him with such petty things as “You know, the state is openly and completely violating the First Amendment”?

    1. OK Let’s talk about religious oppression.

      Early Christians were tortured and killed by the Romans. Soon after the founding of the Muslim religion it broke into sects which have been at deadly war with each other ever since. Jews have been persecuted for almost two milennia, culminating in the Holocaust. In the times leading up to the partition of the sub continent Hindus herded Muslims into barns and set fire to them.

      But all that is nothing compared to the horrible persecution of people trying to follow their religion in the age of the Covid 19 pandemic. I mean, people are being denied the right to go to church and instead have to worship in privacy. Wow.

      Of course if those protesting the decrees against religious gatherings were truly religious there would not need to be any decrees at all. Truly religious people would not consider gathering given that doing so would infect their friends, families and neighbors.

      So yes, government is acting because the so-called religious folks refuse to refrain from spreading sickness and death to their fellow man and woman. Those folks adhere to the 11th commandment, Thou shall go forth and infect thy neighbor, thy neighbor’s spouse, thy neighbor’s ass etc”

      1. “But all that is nothing compared to the horrible persecution of people trying to follow their religion in the age of the Covid 19 pandemic. ”

        You’ve certainly SLAYED that straw man with the force of hundred swords there. Note, I specifically mentioned First Amendment, making your “Well, it was so much worse in the past” comment both idiotic AND utterly pointless.

        “I mean, people are being denied the right to go to church and instead have to worship in privacy. Wow.”

        The First Amendment pretty explicitly says the government cannot restrict your ability to exercise your religion.

        “Of course if those protesting the decrees against religious gatherings were truly religious there would not need to be any decrees at all.”

        Yup, sure, state threatened retaliation is a nothingburger.

        “Truly religious people would not consider gathering given that doing so would infect their friends, families and neighbors.”

        I do so adore seeing people who are imbeciles on religion dictate to religious folks what they REALLY should believe and think.

        Can you explain why religious folks ALONE should have draconian rules on them? Casinos don’t have these rules. Restaurants do not. Bars do not. But churches…you know, the ones protected in the Constitution specifically, do.

        “So yes, government is acting because the so-called religious folks refuse to refrain from spreading sickness and death to their fellow man and woman.”

        I anxiously await anything that proves religious services increase the pandemic. Anything at all. Feel free.

        “Those folks adhere to the 11th commandment, Thou shall go forth and infect thy neighbor, thy neighbor’s spouse, thy neighbor’s ass etc””

        You do not need to display your ignorance for all so obviously. Your post up to this line already did that admirably.

  7. Its okay if rights are violated because how dare we use an injunction.

    Roberts is a failure as a justice.

    1. Yeah, thanks Bush for this winner.

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