Constitution

Emergency Orders Can't Last Forever

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Chief Justice Roberts issued an unusual concurring opinion last night to the Court's denial of injunctive relief to churches objecting to California Governor Newsom's public health orders. On the one hand, he emphasized that judges should not be too quick to intercede in the governmental response to a rapidly changing and devastating pandemic. On the other hand, he concluded his brief opinion by emphasizing that this was especially true when "a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground."

State governors might breathe a sigh of relief that the chief justice did not join his conservative colleagues questioning the constitutionality of state restrictions on church services and cited some particularly deferential opinions from the past to support his vote. As Josh Blackman has pointed out, those citations seem fairly inapt to the situation at hand and seemed most designed to emphasize the importance of judicial deference broadly. Citing Harry Blackmun, as the chief justice did, is always a risky thing to do, but Roberts might be said to be following former Chief Justice William Rehnquist as much or more than Blackmun here.

Roberts clerked for Rehnquist, of course, and Rehnquist, like Roberts, was unquestionably a conservative jurist. But Rehnquist notably reflected a kind of post-New Deal conservative jurisprudence that emphasized the scope of the police powers and deemphasized the scope of individual liberty. It is easy to imagine Rehnquist urging the courts to defer to the discretionary power of state government officials in the context of a public health crisis, as he did in many other contexts. Rehnquist was a judicial hawk on federalism, but part of the point of federalism jurisprudence for him was pushing policymaking authority down to state and local elected officials. Federal officials, including federal judges, should be more hands off than the Warren and Burger Courts were inclined to be and let governors and state legislatures act in the public interest as they and their electorates understood it. Roberts' quote from the Progressive Era Jacobson vaccination case would not have been out of place in a Rehnquist opinion.

Governors should be cautious not to read too much into Roberts' vote, however. Roberts evinces concern that unelected judges not second-guess difficult public health policymaking, but he also emphasized that the Court should be particularly hesitant to act on such an emergency motion when government policy is in flux in response to rapidly changing events.

Roberts did not reveal his hand on how he would apply the most relevant doctrine to this particular case, the Rehnquist Court's precedents on the free exercise of religion. That would require examining the particular question of how church services are being treated compared to similarly situated secular activities. Justice Kavanaugh's three-justice dissent (which Alito did not join, despite dissenting from the Court's order) does briefly take up that question and asks whether churches can be treated differently than grocery stores. I find that to be a singularly unpersuasive comparison, and I hope Kavanaugh and his colleagues do better when a similar case eventually reaches them for full argument. But Kavanaugh is raising real issues.

Governors will need to explain why their specific restrictions on churches are actually justifiable in light of the current state of the pandemic, and why churches should be subject to these particular restrictions given that California, for example, is now opening up hair salons. Attending church services might not be very comparable to grocery shopping, but governors will have a much harder time explaining why religious assemblies should be more restricted than businesses providing personal services or less tolerated than various kinds of secular public assemblies, such as public protests.

It appears that traditional religious services pose real dangers of transmitting this kind of respiratory infection, and thus are particular dangers to public health. If the only risk were to the congregants attending the services, then that would be one thing and we should generally let consenting adults assume whatever risks to their own personal health that they might be willing to tolerate. But that is not the situation. The risk is not merely borne by those who decide to assemble in closely packed environs, but by all those who come in contact with them in the subsequent days, and by all those who come into contact with those who have come into contact with the congregants, and so on. Individual liberty, including religious liberty, comes with limits.

The state has a real interest in preventing churches from becoming virus incubators, but it also has an obligation to impose regulations that are reasonable and to treat religious activities no differently than other, similarly situated activities. Public health officials needed, and received, particular deference in the early days of the pandemic as they struggled to respond to an uncertain but dangerous situation. But there are limits.

Judicial, and political, deference to public health officials should not be unbounded. We cannot live with emergency measures forever. The excuse that the virus in unknown and uncontrolled only works for so long. Governments had an obligation to use the time that was purchased by the lockdown to prepare for the inevitable reopening. It is not at all obvious that they used that time wisely or productively. Courts have an obligation to insure that governments not restrict liberty more than is necessary or for longer than is necessary, even in a pandemic.

Roberts gave California and other states more time to recalibrate their emergency orders, and they had better take advantage of it. They should not assume that five justices will continue to be willing to defer to sweeping restrictions on daily life indefinitely, or when another case reaches the Court in a better posture to support careful judicial deliberation of the merits.

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  1. I am surprised Roberts didn’t take this time to repudiate Reynolds like he did Korematsu in Trump v Hawaii??

  2. The state has a real interest in preventing churches [and synagogues!] from becoming virus incubators, but it also has an obligation to impose regulations that are reasonable and to treat religious activities no differently than other, similarly situated activities.

    All fine and good, but can somebody please articulate some kind of bright line to tell us when we went too far? If we are being guided by the science and the data, then this cannot be impossible. What the heck is the standard? Or is it the case that when theatres, concert halls and indoor arenas reopen, then house of worship open. That could be quite a long wait. Churches and synagogues depend on revenue. Then what?

    Although disappointed in the SCOTUS decision, at least I can say as an ordinary citizen I can understand his reasoning (and accept it). It is not an easy constitutional question.

    1. One of the problems with a coronavirus (ie, a brand new one) is that all the medical experts can do is make educated guesses about lethality, easy of transmission, etc.. It’s why you see models, over time, change their predictions pretty dramatically. So, although I join you in wanting bright lines, I think it’s not possible in these types of real-world situations.
      (Unless you are looking for bright-line legal rules. Then, maybe, something like, “Executive orders that are rationally-related to publicly-available and peer-reviewed data are presumptively valid.” But even that is problematic. If there is a major earthquake or flood, I don’t want a governor’s hands to be legally-tied until after experts can assemble sufficient data. I want that governor to be able to order in National Guards, mandate evacuations, etc..)

      Short answer: I don’t know what the f*ck to do . . . But I’d rather look back and say, “We did too much, and for too long.” than to look back and say, “Man, those tens of thousands of people died because we did not do enough.” or “We were doing okay, but reopened too early.”

      1. Versus “we’re doing OKay here in DDR-West….”

        1. I just realized it’s been 30 years and hence no one under age 45 has any memory of the Deutsche Demokratische Republik, a.k.a. East Germany.

      2. santamonica811….Thank you for your honesty (sincerely) = Short answer: I don’t know what the f*ck to do . . . But I’d rather look back and say, “We did too much, and for too long.” than to look back and say, “Man, those tens of thousands of people died because we did not do enough.” or “We were doing okay, but reopened too early.”

        I’ll just keep waiting it out. I mean, what else can you do? The rules are that you need to work through your elected representatives. So I wrote my state assemblymen, my state senator and my governor (respectfully!) expressing my displeasure and asking them to move the process along (in the People’s Republic of NJ).

        I guess the next move is to drive my ass to Trenton, hold up a sign, and protest; in a respectful, and socially distant manner. Petition for a redress of grievance. We are a nation of laws. It is that simple. This is what I was taught in high school civics.

        1. And vote for someone else in November.

    2. Well, one bright line is that religious bodies cannot be singled out or treated worse than comparable secular activities.

    3. Because it is too fact dependent, I don’t think you can have a bright-line rule for when a law or order is not neutral and generally applicable. It would however be helpful if there was guidance on whether those who challenge a law have the burden to show it is not neutral, those defending the law have the burden to show it is, or neither has a greater burden.

    4. Or is it the case that when theatres, concert halls and indoor arenas reopen, then house of worship open. That could be quite a long wait. Churches and synagogues depend on revenue. Then what?

      I would say when theatres etc. are deemed safe to open, not when they actually do. The latter depends also on customers being willing to buy tickets.

      Churches and synagogues are better off in this respect, as their revenue mainly comes from contributions, not ticket sales. They can reopen as soon as it is safe to do so. Commercial enterprises might be financially unable to re-open at that time.

      1. My shul has seen >20% of members decline to re-up for 5781.

  3. “It appears that traditional religious services pose real dangers of transmitting this kind of respiratory infection, and thus are particular dangers to public health. If the only risk were to the congregants attending the services, then that would be one thing and we should generally let consenting adults assume whatever risks to their own personal health that they might be willing to tolerate.”

    This type of argument is overly selective and overblown.

    Every setting has a risk of disease transmission. Whether it be airplanes packed to the gills (Of which there are many pictures), crowded supermarkets, crowded factories, mass protests, or media organizations crowding together to bring you the latest political commentary.

    Picking on “one” item is overtly selective

    1. Every setting has a risk of disease transmission.

      The difference is that this particular setting has been well-documented to be a risk by several pretty spectacular outbreaks directly linked to church services.

      1. There have also been large outbreaks linked to offices, factories, and mass transit – all of which are having a different standard applied to them.

      2. Covid only spreads at lockdown protests. The magic of diversity prevents its spread when protests involve racial equality. Everyone knows this.

        1. It will be interesting what happens a week from now…

      3. Actually, I have yet to see an outbreak directly linked to a church service. I have read about congregations where many members were sick, but no evidence that, for instance, those members all worked for the large local employer.
        I would not think it possible to identify a single source for the infection of an individual who goes to more than one place in a two week period. Which is why I think the “liability panic” is not well thought out.

  4. For the Supremes to have granted preliminary relief at this stage would have been a dramatic step. It was not to be expected. But California (and other States) ought to regard this 5-4 decision as a shot across the bow. If they fail to show at trial that their policies regarding church services are well-founded and based on science, not fear, and not distrust of religious institutions and people, when a final decision comes before the Court, Roberts (and perhaps other Justices) could well support permanent injunctive relief.

    1. It’ll be moot long before it gets to that point.

      1. I doubt that Alameda County in CA is locked down until further notice – that is, indefinitely. Yet In Sonoma at outdoor beer gardens are open. How is that different than letting churches be open?

  5. Justice Kavanaugh’s three-justice dissent (which Alito did not join, despite dissenting from the Court’s order) does briefly take up that question and asks whether churches can be treated differently than grocery stores. I find that to be a singularly unpersuasive comparison…

    No kidding. He essentially just pasted in the relevant sections complaint and used them as a justification, without even trying to engage with the “comparable nature” argument. Very sloppy, and disappointing that two of his colleagues thought it right to join such an intellectually dishonest piece of work.

    1. To be fair, it was referred on Thursday and the opinion was out Saturday 9AM. That’s really not a lot of time to give it a thoughtful review and to polish up the writing.

  6. Well if you are Christian, you know what to do in November. No matter how much you might want to vote for Biden, pull the lever for Trump. The Supreme Court is still in the balance. If you don’t, then please feign surprise when Achtung loving liberals start persecuting you openly.

    1. I don’t know why you’d think Christians are irresponsible jerks. (Strike that; if you hang out with people who would consider voting for Trump, I do know why you’d think that.)

      1. Trump may be a sinner, but he has done a lot more for Christianity (and Israel) than any Democrat in my lifetime, including Jimmy Carter.

        1. What exactly do you think Trump, the two Corinthians guy who took public exception to the notion of forgiving ones enemies (he thinks Jesus got that precept wrong), has done for Christianity?

    2. There’s going to be a Red Wave that people can’t imagine.

      1. Will that “Red Wave” include Prof. Volokh going from having the dean at UCLA apologize for Prof. Volokh’s use of racial slurs to Prof. Volokh being the dean at UCLA while using racial slurs?

        1. If it comes out that American Academia was involved in these nationally-organized (ANTIFA) riots, I suspect there will be a lot of new deans and such.

          But a point here — Prof Volokh did not *use* racial slurs, instead he accurately described court testimony. *Using* a racial slur is saying “you ______.”

          1. You are mistaken. Or lying.

            Either way, the Conspirators are grateful for your obsequious support.

      2. Don’t count your chickens, Ed.

        I’m not.

        1. I’m not either, but remember that the 1968 riots got Nixon elected.

          1. In 1968, the riots occurred on the Democrats’ watch. Here, Trump is the incumbent. What’s he going to say, “Vote for me because I would’ve kept riots from happening if I were doing my job”?

            1. In 2020 the riots occurred on the Democrats’ watch, too. Did you see riots anywhere Republicans were in charge? You only get this sort of behavior where Democrats are running the show.

          2. Also, the Trump of 1968 wasn’t Nixon; it was Wallace.

  7. So into a post, you essentially re-post it two hours later. That’s not the behavior of a debate or discussion, it’s propaganda.

    African Americans of faith may have a very different opinion from you. Would you call them not Christian? What about CJ Roberts? Not Christian?

    If you keep it at an 11, you’re going to end up like WBC if Trump loses, and just wallow in apocalyptic bitterness.

    1. It is worth repeating because Christians need to be reminded what is at stake. This isn’t a game. This is real fascism transpiring right in front of us. Remember first they came for the Christians.

      1. You don’t know what fascism is.
        You have a very restrictive understanding of what Christianity is.

        They didn’t first come for the Christians first, you yutz. Look up who they came for first, and consider.

        1. This time they are clearly coming for the Christians first. Liberals be like Achtung Baby!

          1. Is having Churches follow the same rules as everyone else “coming for the Christians”?

            If no, then the point is conceded.

            If yes, the Scalia is in the host place.

        2. They came first for the Christians this time, and swept up random Jews in the process. I have long held that we face similar threats.

          1. Nobody is “coming for the Christians.”

            Get help with your paranoia. Using that phrase is disgusting.

            1. They ARE coming for the Christians.
              Trump/Pence is our defense.

              1. You don’t sound like a Christian, so what do you mean “our”?

  8. This lockdown can’t be that important if all these protestors can burn down buildings and pack together like sardines in protests and the media is swooning all over them.

    1. Where are the crisis actors in scrubs to challenge these protesters who are probably spreading Covid?

    2. In the 3 hours I’ve been watching the news (CNN, Fox, and MSNBC), I have yet to see a SINGLE commentator applaud or come remotely close to endorsing these thuggish vandals. Can you cite to your news sources? (Or, are you getting your news from your usual voices you hear inside your head?)

      1. Here’s one
        twitter(dot)com samanthastorey status 1266389852263723009

        and another
        twitter(dot)com RottenInDenmark status 1266766813058088961

        and another
        twitter(dot)com letsgomathias status 1266849959112040448

        1. Please note: Twitter is not a reliable, verifiable, source for citation.

          1. Why does the ENTIRE liberal media treat it as such then?

            1. You’re just nutpicking again.

              I don’t believe citing twitter randos is a common journalistic practice absent some clickbait articles.

              1. You should change your handle to DenialrO

                1. I really have no appetite for arguing with (a) congenital fools, (b) Russian trolls, or (c) A and B.

                  If you guys wanna hang your hats on Twitter posts, then God bless you. You must hate that Trump is a racist based merely on his Twitter posts and reposts. Or his recent reposts re to the rioting (which he did try and walk back, somewhat, which notable in of itself).

                  1. Liberals be like “Twitter is where democracy happens!!!!” then they be like “Twitter ain’t nothing but broke ass…”

                  2. Just a few days ago the Covid lockdown was the most important thing in the universe and they were on the hick protestors like stink on a pig for the danger they were supposedly putting the planet under. Now that it their side theres suddenly barely a peep about it. In fact the protestors might as well be going on a precovid pinic with how generic and nonjudgemental the majority of the reporting is. And of course they go to their social media accounts to really start slobbering over the looters. But remain in denial if you want.

                  3. Yeah, Amos. I’m going to mock the people whose signs talk about getting a haircut as they performatively wear no masks versus the people who are protesting about government killing innocent people while wearing masks.

                    Sorry your side was so trivial and whiny, but that’s not a double standard.

                    1. Yeah, Amos. I’m going to mock the people whose signs talk about getting a haircut as they performatively
                      >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
                      Based upon your mocking dismissing I’m guessing you’re in one of the strata/retired who are relatively unaffected economically by this lockdown and are smugly unaware as you lecture people to flush their livelihoods and businesses they’ve built for years down the drain while finding any excuse for the looters.

                      >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
                      the people who are protesting about government killing innocent people while wearing masks.
                      >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

                      you haven’t been watching the protests very carefully have you? And they certainly aren’t social distancing either.

          2. These are the brainpickings of journalists for major ‘mainstream’ publications. That its on Twitter has nothing to do with anything. I was asked to provide the endorsements of journalists, not write an expert report on Mesopotamian history.

      2. Anyone raising Wuhan concerns?

    3. The lockdown is one of the major reasons for the riots.

      You’ve taken people, locked them down for 2 months, removed many of the outlets for their passions and energy. Left them nervous, without personal support, and…

      Floyd was the spark. But the lock downs are the fuel.

      1. “The lockdown is one of the major reasons for the riots.”

        Anyone remember when I said that people would revolt?

        1. This is not what you meant, and you know it.

            1. You posted again and again about people who were against the lockdown rising up, or individuals who were against the lockdown shooting a sheriff arriving to enforce it.

              1. If you include the Federal protective service officer, we’ve got what — four dead cops — already???

      2. Won’t argue with that.

    4. “this lockdown can’t be that important if all these protestors can burn down buildings and pack together like sardines in protests “

      My point exactly.

      IF there were merit in this Wuhan Hysteria, them they’d be shooting the protesters for the greater good of the populace.

      They aren’t, are they?

  9. Roberts declares all government oppression and violations of the People’s Constitutional Rights to be a tax, and therefore beyond judicial review, thereby ensuring his continued status on the Georgetown social party scene.

  10. Wishy-washy to the end — W’s 2nd biggest mistake.

  11. Judicial, and political, deference to public health officials should not be unbounded. We cannot live with emergency measures forever. The excuse that the virus in unknown and uncontrolled only works for so long. Governments had an obligation to use the time that was purchased by the lockdown to prepare for the inevitable reopening. It is not at all obvious that they used that time wisely or productively. Courts have an obligation to insure that governments not restrict liberty more than is necessary or for longer than is necessary, even in a pandemic.

    In one paragraph, five separate mentions of an elapsed-time rule, with nary a hint what interval of time suffices as the standard. Emergencies remain emergencies until they do not. The limiting rule cannot be, “too long.” The limiting rule must be, “until changed circumstances show emergency conditions have passed.”

    There is no reason why defenders of liberty cannot go to court with evidence of normalcy, and ask a judge to end an emergency declaration which has demonstrably outlasted emergency conditions. No court should have power to impose an arbitrary time limit, based on nothing more than impatience.

    1. The interval, like for affirmative action, is however long it takes to replace enough Justices who favor the policy with Justices who oppose it.

      1. Brett, if the rule is to be appointment of justices on the basis of their reliably-intended policy rulings, then Republicans had best never lose control. Because Democrats will appoint enough such justices—as many as need be, after court enlargement—to assure that majoritarian policies govern U.S. elections. And after that, it will be a long, long time before Republicans appoint another justice of their own.

        1. Stephen, Democrats have been appointing justices on the basis of their reliably intended policy rulings for nearly a century now. I’m getting bored with this threat to kick the board over if you lose at the Supreme court. At this point the only sensible response to such threats is “bring it”.

  12. “We cannot live with emergency measures forever.”

    This is like saying that, if we faced another foreign invasion like we did in 1812, that the emergency measures can’t go on, even as the invasion fails to be repelled.

    That doesn’t make sense. It goes on for as long as it goes on. The emergency is an external fact of nature. It is a phenomenon that follows no laws, except the laws of biology and physics. The laws of biology and physics do not care about your feelings. They do not care that you are getting tired of lockdowns and want to go back to normal.

    Wishful thinking will not end the crisis.

    1. And I called it several weeks ago that as the lockdown continued the orders were going to become increasingly constitutionally suspect.

    2. Whatever happened to “sons of Martha”? People are getting evicted from their homes. Don’t those living hand to mouth deserve any consideration? There is public assistance, but the damage to the economy gets deeper every month. Without production, soon inflation will take off, raising the cost of living for everyone. The impact of the virus is headed toward that of the flu, and the masks are working. The reopening should continue until the numbers say otherwise.

  13. > Emergency Orders Can’t Last Forever

    See Eldridge v. Ashcroft

      1. Cthullu would like a word.

  14. So libs….what about all that talk about how protests when Covid is a public health crisis are “unamerican” and how it is disrespectful to health care workers and all that jazz you were full of just two weeks ago….let’s hear the condemnation now….

    **Gets more popcorn**

    1. Almost everybody seems to have forgotten already that covid and socialdistancing was the most important thing in the universe 3-4 days ago. Not even the conservative networks are really bringing it up much if at all. Its like a case of global amnesia lol.

      1. And you can’t beat the glorification headlines found this morning on MSNBC, CNN, Huffpo, etc.

        A bunch of white guys legally carrying guns are branded “domestic terrorists” by the same media that refers to Black Lives Matter riots and looting are just “onlookers” or “participants”.

        Can’t wait to see how Sarcastro tries to explain this one away….

        **Popping more popcorn**

      2. I want to know if there will be the massive increase in infection rate, or if all this Kabuki Theater was just that..

        1. There were not crisis actors in scrubs that appeared at these protests…wonder why….

    2. what about all that talk about how protests when Covid is a public health crisis are “unamerican”

      Nobody said that protests were un-American. People said that stupid protests by loons whining that they can’t get haircuts or go to bars were.

  15. The problem here seems only marginally the differential treatment of religion, albeit I hardly think the governor[s] involved are particularly solicitous of this textual liberty.

    But the idea that the emergency can’t go on forever begs the elephant in the kitchen. All of this is taking place under absurdly broad delegated action, which becomes more absurd as time goes on and its clear that there is no emergency, only an emergency declaration.

    Legislatures as usual cluster cowardly. The courts job is not to second guess governors, it is to make the legisators fill thier posts. If they say we can’t go to church or the corner pub, sobeit subject to the courts inquiry into differential treatment for protected rights. (And bully for them, if it suddenly occurs to any of the branches of government that economic rights are no less sacred than religious ones).

    1. devilsadvocateri — “. . . its clear that there is no emergency, only an emergency declaration.”

      I have listened to pandemic minimizers insist there can’t be any emergency. “They said there would be bodies in the streets,” say the minimizers, “Where are they?”

      They are in New York.

      A NYT story last week detailed ~200 refrigerated trailers doing morgue duty. Many are indeed parked on New York City streets—some of them stuffed with as many as 100 corpses.

      During the 10 deadliest years of the Vietnam war, the four most-Covid-19-affected states, New York, New Jersey, Massachusetts, and Connecticut, suffered between them ~ 7,500 deaths. During just 8 weeks of pandemic, those same states suffered > 50,000 Covid-19 deaths. In those states, that is a per-week death rate more than 400 times greater than during the Vietnam War.

      I do not suppose you are completely unaware of those facts, nor that you are stupid enough not to grasp that those facts epitomize the term, “emergency.” It seems highly unlikely that you are even dim enough not to realize that what happened (and is still happening) in the Northeast could as easily happen again, at many other places in this nation.

      So why are you lying? What is your motivation? Do you comment to express hatred for people who think otherwise? Are you heedless of Trump’s abysmal, deadly record, and anxious about his political future? At long last, can’t you be forthright? What are you minimizers thinking? What are you trying to do?

      1. Because funerals are being delayed

        1. What a peculiar comment. I point to undeniable evidence that deaths have enormously accelerated. You reply with speculation about delayed funerals. Why won’t you be forthright? What are you trying to do?

          1. Stephen,
            Indeed they are accelerating as is the rate of contagion in CA and that despite 11 weeks of sequestration of the public.
            And yet in our neighboring county outdoor beer gardens are now allowed to open.
            Doesn’t that strike you as strange? And in what is geographically the largest portion of CA. There is still no appreciable number of cases to speak of.

  16. The state legislatures should pass laws outlawing violent protests and rioting…what do they do up there all day in Capital City that they are outlawing religious services but not violent protest and rioting?!? I might just run for state office!!

  17. “…asks whether churches can be treated differently than grocery stores. I find that to be a singularly unpersuasive comparison…”

    Man does not live by bread alone.

  18. . Citing Harry Blackmun, as the chief justice did, is always a risky thing to do

    What does this mean?

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