The Volokh Conspiracy

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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.


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.