The Chief Justice's Unexpected Super Precedent from the Shadow Docket

The Court should grand cert before judgment in Agudath Israel of America v. Cuomo to clarify the appropriate standard for First Amendment cases during the pandemic.


On May 29, 2020, the Supreme Court denied an injunction in South Bay United Pentecostal Church v. Newsom. The Court's order was a single sentence. Chief Justice Roberts wrote a solo concurrence that stretched about two pages. According to Westlaw, 114 cases have cited the Chief's concurrence. (I cited many of these cases in my Harvard JLPPP article). And only one of those case has negatively referenced the opinion. In six months, South Bay may have become Chief Justice Roberts's most influential precedent during his entire tenure on the Court.

To be sure, Roberts has written many important decisions. But those cases affected discrete controversies. NFIB v. Sebelius resolved the constitutionality of the ACA. Shelby County v. Holder resolved the status of the Voting Rights Act. The Census and DACA cases resolved controversies specific to the Trump era. And so on.

But his South Bay concurrence settled cases of first impressions that have spanned across the entire spectrum of constitutional adjudication. Courts have cited South Bay in cases involving every facet of the Bill of Rights: the Freedom of Speech, the Free Exercise of Religion, Freedom of Association, the Second Amendment, various criminal procedure rights (such as the right to a speedy trial), and the Eighth Amendment (conditions for prisoners). South Bay has been cited in substantive due process cases, involving rights to contract and rights to abortion. South Bay has been decisive in cases involving voting rights during the pandemic. Courts have relied on South Bay to determine the police powers of governors to impose mask mandates and other quarantine measures. In disputes between state and localities, South Bay has served as a tiebreaker.

It is difficult to account for how broadly governments at all levels have relied on the Chief's opinion. Conservatives and liberals have latched onto the Chief's cursory analysis as the end-all be-all of COVID-deference. Before South Bay, several courts actually ruled for the religious claimants. But since South Bay, houses of worship have consistently lost. Truly, the impact of the South Bay concurrence has been staggering.

Regrettably, courts have failed to account for the narrow context in which South Bay arose. The Plaintiffs sought an injunction pending appeal. The crux of Roberts's concurrence is that the Supreme Court should not grant an injunction pending appeal unless the "'the legal rights at issue are indisputably clear' and, even then, 'sparingly and only in the most critical and exigent circumstances.'" This standard is well known, and does not in any way depend on the COVID-19 pandemic. The Chief cited Jacobson, briefly, but only noted that the government should get deference during the "dynamic" pandemic.

In the abstract, it isn't clear that South Bay should serve as a precedent, at all, for district court and courts of appeals. Plaintiffs do not need to show their claim for relief is "indisputably clear" to obtain preliminary injunctive relief. Yet, courts have reflexively cited the Chief's opinion, as if it were a super precedent that governs all things COVID. It is not. It is a solo concurrence from the shadow docket. Judge O'Scannlain accurately described the status of South Bay in his Harvest Rock dissent.

I first clarify a point that is somewhat obscured by the majority's decision: we are neither bound nor meaningfully guided by the Supreme Court's decision to deny a writ of injunction against California's restrictions on religious worship services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at 1613. That decision, which considered a challenge to an earlier and much different iteration of California's restrictions, was unaccompanied by any opinion of the Court and thus is precedential only as to "the precise issues presented and necessarily decided." Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per curiam). In that case, the Supreme Court considered whether to issue a writ of injunction under the All Writs Act, 28 U.S.C. § 1651(a), a more demanding standard than that which applies to the motion for an injunction pending appeal here. . . . . Without any opinion of the Court, we have no guidance whatsoever—not even in the form of "dicta" as the majority suggests, Maj .at 7—as to why the Court declined to provide such an extraordinary remedy, and we certainly have no basis to infer that a majority of theCourt agreed upon some unstated rationale that somehow applies equally here.

The Supreme Court should not set binding precedent from concurrences in an unargued case. Chief Justice Roberts wrote for a very specific context, yet more than a hundred of judges have cited it in unrelated circumstances. Truly, the South Bay concurrence has taken on a life of its own, far beyond the Chief's intentions.

Fortunately, a pending case affords the Court an opportunity to clarify the appropriate standard for First Amendment cases, in the proper posture. Agudath Israel of America v. Cuomo presents a challenge to New York's restrictions on Houses of Worship (I serve as co-counsel with the Becket Fund for Religious Liberty on a related case on behalf of a Jewish school in New York). Agudath Israel sought an injunction from the Supreme Court, and in the alternative, requested a petition for certiorari before judgment. (There is a related pending case, The Roman Catholic Diocese of Brooklyn v. Cuomo, that did not request cert before judgment.)

A cert grant now would clarify the relevant standard, and settle a pre- and post-South Bay circuit split. The brief explains:

Certiorari is further warranted given the conflicts between the Second Circuit's decision and decisions of other Circuits and of this Court. The Second Circuit declined to apply heightened scrutiny even though the Cluster Initiative treated houses of worship worse than so-called "essential" businesses, App. 6 (Park, J., dissenting), simply because (in some zones) the Cluster Initiative also imposed stringent restrictions on other entities, like schools and restaurants, App. 4 (majority). Yet the Sixth Circuit subjected a Kentucky COVID-19 order to heightened scrutiny because it closed houses of worship but not other "life-sustaining" organizations, without regard to which other entities were closed, too. Roberts v. Neace, 958 F.3d 409, 411–15 (6th Cir. 2020) (per curiam). And the Third Circuit has held that even a single secular exemption to an otherwise-applicable prohibition can render a law not neutral and generally applicable as applied to religion, regardless whether other secular conduct is likewise banned. Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365–66 (3d Cir. 1999); see Calvary Chapel, 140 S. Ct. at 2613 (Kavanaugh, J., dissenting) ("The point is not whether one or a few secular analogs are regulated. The question is whether a single secular analog is not regulated." (citation omitted) (emphasis in original)).

Enough emanations and penumbras from the shadow docket. The Court should grant certiorari, and settle these landmark issues in the proper postures. Arguments could be set for December 9, the last day of the current November sitting, and decided in January. (The Court could follow a similar expedited calendar for the census case). Let's settle this issue the right way.

Here, the dynamics may be difficult for the Chief. Justice Kavanaugh, and the three other Calvary Chapel dissenters can push to grant cert before judgment. Justice Barrett may even grant a courtesy fifth. At that point, the Court would hear the case. The South Bay test, which was limited to injunctive relief, would no longer be binding. At that point, I suspect there would be five votes to limit New York's expansive restrictions on the Free Exercise of Religion. The Chief could then choose to be in dissent. Or, more likely, he would find a way to stay in the majority. Perhaps by issuing a more narrow decision that permits the Houses of Worship to open with certain social distancing measures–measures they were already complying with.

This dance will become familiar to Roberts. I cannot think of any Chief Justice in history who was consistently in dissent. And Roberts would not want to be the first. So he will have to find ways to moderate to the right, without losing the conservative flank. Justices Gorsuch, Kavanaugh, and Barrett now become kingmakers. They can seek the Chief's joinder, or forge their own path. Now it is Roberts's choice.

NEXT: Biden Transition Team Member's Op-Ed on "Why America Needs a Hate Speech Law"

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  1. I think this shows that appellate courts would really like some modern precedent to guide their decisions in this area. If you read the lower court opinions they are basically asking the Court to grant cert or at least issue a per curium with some guidance.

    Some State Supreme Courts have gone out on their own, doing so sometimes under their own state constitution (or avoiding that question by interpreting state law), but it is obvious to anyone who has been following the “pandemic law” cases that courts are grasping at how to address these questions in a uniform and modern fashion.

  2. Plaintiffs do not need to show their claim for relief is “indisputably clear” to obtain preliminary injunctive relief.

    Maybe in general this is true, but when you are talking about a preliminary injunction that could result in significant numbers of people getting sick or even dying, during the midst of a public health epidemic that judges and lawyers have zero expertise in. Yeah, I would demand indisputable clarity. Indeed, I would want proof that whatever order I issue will not cause a single person to get sick.

    Now I would note, this is NOT the standard I would use for an injunction after trial, and after discovery. At that point, when experts for both sides are heard and subjected to Daubert analysis and everything else, sure, I would be happy to adjudicate the case under normal rules.

    But prohibiting a public health measure during a pandemic? Judges have no business deciding its OK to kill people, or that they don’t believe in epidemiology. This must be reserved for the clearest cases. Or, alternatively, the public has to convince their elected representatives to lift the restrictions.

    1. The problem, Dilan, is that your analysis suffers from the Precautionary Principle Fallacy. It favors doing nothing while ignoring the costs (including deaths) of taking that path.

      Consider: A preliminary injunction against a particular covid lockdown might plausibly result in increased infections leading to deaths. However, the same lockdown will definitely lead to increases in joblessness, poverty and bankruptcy, social factors which are very well correlated with increased illness, domestic violence, suicide and a host of other causes of death. Your analysis (and the Precautionary Principle) says that we can’t even consider those other harms until the full trial – by which time many people have already died.

      Yes, people will possibly die if you decide the other way, too. My point is that the so-called Precautionary Principle is a fallacious model. It provides no useful decision-making rule. And despite not using those words, that’s the standard you are advocating.

      1. If you think that the costs outweigh the benefits, we have a branch of government, the legislature, that can decide that. They can bring in experts, have committee hearings, and listen to members of the public.

        It is not the unelected judiciary’s job to do that sort of balancing. In other words, it isn’t a Precuationary Principle I am advocating, it’s that unelected judges should not be trading off people’s lives and health. That’s a job for the political branches.

        1. The Executive and the Legislature doesn’t just get a pass to do away with my constitutional rights, simply because they pass a law, or an executive order. That is crazy. The legislature should not be trading away our civil liberties; it is the job of the judiciary to preserve them.

          1. “The Executive and the Legislature doesn’t just get a pass to do away with my constitutional rights, simply because they pass a law, or an executive order.”

            No, they don’t. But you miss the point, completely. This is under the standard for a PRELIMINARY injunction.

            The judiciary is supposed to be the least dangerous branch- but they are also, generally, the least accountable branch. When it comes to dealing with epidemics, emergency situations, and public health, the correct balance is for the legislature and the executive to make the calls.

            That doesn’t mean you don’t have any recourse. You can, for example, get full discovery, evidence, and so on for an injunction after a trial (or summary judgment). Not to mention that parties will have the ability to go after the government later (under various theories, such as 1983 or takings).

            And, of course, the legislature and the executive is subject to being voted out.

            1. loki13….No, I don’t think I am missing much of anything here. What we have seen in the last eight months is incredible, in terms of our civil rights being suppressed by various Executives and Legislatures. In particular, our free exercise rights, our free speech rights, our free association rights, our rights to be free of arbitrary search and seizure….all done away with by executive orders, and all too willing state legislatures. That is wrong.

              A month to deal with an ’emergency’ I understand. When a family member died earlier this year, I could not go to shul to pray Mourners Kaddish. Shiva was out. Graveside service was out. These rituals are integral to my life. They are no less important (or meaningful or necessary) than my rights to earn a livelihood. What we have now is simply intolerable.

              Loki13, the judiciary must preserve our civil liberties when the Executive and Legislative branches don’t.

              1. XY:

                1. Whether these decisions actually infringe your rights depends on whether or not they are actually (necessary/substantially related/rationally related, depending on level of scrutiny) to the obviously compelling interest of preventing transmission of the virus. If they are, your rights are not being violated. At all.

                This is a very important point. There is ZERO doubt under the Constitution that if preventing an assembly of people is necessary to prevent the spread of the virus, the government can do it. Indeed, the government has had this power with respect to communicable diseases for decades. They can literally put you under house arrest or even imprison you in a quarantine facility if you are going to transmit a communicable disease otherwise.

                2. As a result of (1), when you are before a court on a preliminary injunction, you have the burden of proving that you are likely to succeed on the merits. In other words, you have to prove that stopping the government’s action won’t cause the spread of the virus. If your argument is not that, but rather that a balance should be made where some spread is allowed in order to ensure that people get to do things they want to do, that’s not a legal argument. That’s a policy argument that goes to the legislature. The only thing the courts should care about is whether you have the right, and you literally have no right to spread an infectious, deadly disease. That is the very definition of a compelling state interest.

                3. You don’t get to override epidemiology either. There’s no time limit on viruses. There’s no “once a month passes, we can murder Grandma because I’m too much of a selfish toddler to accept a lockdown”. Now you CAN go back to the legislature and argue this isn’t worth it, and democratically accountable people might agree with you. But again, a court can’t impose that time limit, because that is not the judicial role. As long as the virus is still communicable and deadly, it remains a compelling state interest.

                1. “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

                  -Ben Franklin.

                  There’s always a disease out there. Your view on our rights, taken to the logical end would destroy our liberties under the US Constitution…

                  1. No Armchair, there isn’t “always a disease out there”. As evidenced by the fact that these restrictions were not imposed over the past 80 years. It is the specifics of the coronavirus epidemic, the ways in which this virus is different than other diseases, that justify the restrictions.

                    And our liberties under the US Constitution do not include the liberty to spread viruses. They just don’t.

                    It’s amazing the amount of circular reasoning that is involved in these arguments. Nobody’s saying you don’t have freedom of assembly or the free exercise of religion. We are saying that all of those rights are subject to the compelling state interests test, and therefore don’t apply if there’s sufficient evidence that what you are doing could infect other people.

                    Just as prohibiting human sacrifices does not mean we don’t have free exercise of religion, prohibiting superspreader church services doesn’t mean it either.

                    1. There is always a disease out there. That’s how it works. We’ve had bad diseases before. The Spanish Flu. HIV. The Plague. You can even go with the common flu. And more.

                      But these restrictions go FAR beyond anything that occurred before. They are a “unique” restriction of our liberties.

                      “And our liberties under the US Constitution do not include the liberty to spread viruses. They just don’t”

                      OK. Use that statement, and apply it to the common flu. Does that justify mass quarantines due to the common flu? Why or why not? It kills thousands every year. This is where your logic leads…

                    2. I don’t know, Armchair. Get back to me when there are mass quarantines imposed against the Flu.

                    3. Come on Dilan…

                      The Flu kills thousands of people every year. Does that, or does that not, justify a mass quarantine?

                      HIV has killed hundreds of thousands in this country. Does the fact HIV exists justify the mass quarantine of those who have it? Just in case? Why or why not?

                      Where’s your limit here?

                    4. Here’s the issue with your logic Dilan.

                      Let’s take HIV as a case example. It’s got a very high death rate, and very long time that people are infectious for. Under your ethical paradigm, the US would be entirely justified in:

                      1. Testing the entire population for HIV.
                      2. Rounding up everyone who has HIV, and putting them in prison until they die.

                      -This way you could ensure that they wouldn’t spread HIV anymore. And you would effectively wipe out 99% of the disease in the US, and probably save hundreds of thousands of lives from the virus. It would be a horrible abrogation of liberty, but it would “save people from the virus”. They don’t have a right to spread the virus, and the only way you can be sure they won’t is to imprison them.

                    5. The Founders had to deal with Smallpox, much more transmissable and lethal than the Wuhan coronavirus. They did not see the need to do away with our civil rights.

                    6. Armchair:

                      If quarantines are imposed against the Flu or HIV, we can evaluate their constitutionality. The fact that they haven’t been demonstrates my point, which is that legislatures are perfectly capable of NOT using any disease as an excuse to restrict our civil liberties.

                    7. So, that’s an interesting switch.

                      Before, “There is ZERO doubt under the Constitution that if preventing an assembly of people is necessary to prevent the spread of the virus, the government can do it.

                      Now: “If quarantines are imposed against the Flu or HIV, we can evaluate their constitutionality.”

                      Which is it? Is there “Zero doubt”? or do they need to be “evaluated”?

                    8. There is no constitutional right to transmit a deadly virus.

                      How that plays out in a specific case requires facts, which we don’t have in your hypothetical flu or HIV lockdowns, because nobody has done it.

                    9. So, you’re saying HIV is not a deadly virus? The Flu is not a deadly virus?

                    10. No, I’m saying we need facts. Is there an outbreak? How deadly is it? Is it a resistant strain? Are other efforts not working?

                      To take your HIV example, for instance, if an HIV outbreak occurred on a public university campus and the students showed themselves to be unwilling to use protection, could the university lock down the dorms until everyone got tested? Maybe!

                      Cases get decided on actual facts. You need to know how dangerous the virus is, how many people are dying from it, and you also need to know how it transmits, whether other precautions are available, and most importantly, what decision did the decisionmakers actually make.

                      There could be a situation where a plaintiff could negate that a particular restriction will save any lives or prevent transmission, or might show that a less restrictive means exists that will accomplish the same result. So it’s not that a plaintiff can never win a preliminary injunction. And that’s why we can’t answer these questions hypothetically.

                    11. Dilan,

                      Sure, let’s take the HIV example. Let’s go through your cases.

                      “Cases get decided on actual facts. You need to know how dangerous the virus is, how many people are dying from it, and you also need to know how it transmits, whether other precautions are available, and most importantly, what decision did the decisionmakers actually make.”

                      1. HIV is an extremely deadly disease.
                      2. There is an outbreak. ~37,000 new people are infected with it every year in the US.
                      3. Just in the US, deaths are at ~15,000 per year.
                      4. Clearly it is still being transmitted, and people aren’t taking the precautions to stop it. Statistically speaking, if you have people out there with HIV, it will be transmitted.

                      This justifies…what? According to you, it justifies mass imprisonment. To stop the spread of the disease.

                    12. Armchair:

                      I suppose many things could “justify” mass imprisonment in theory.

                      But the genius of Article III is that we don’t need to worry about every hypothetical especially if it involves the political branches doing things they would never do.

                2. You don’t get to make that decision for others. His actions would have harmed no one but himself. Your prescription is the epitome of the precautionary principle and the nanny state.

                  1. No, you guys can repeat “precautionary principle” as many times as you like, but I am making an argument about law, not scientific epistemology.

                    The LAW is that parties seeking preliminary injunctions have the burden of proof, that rights yield to sufficiently compelling interests, and that death and infection are such interests. You can completely dismiss the “precautionary principle” in scientific debates if you wish to and that will still be the law.

                    1. And you can deny precautionary principle all you want, but you are still touting it. Call it hiding behind the law if you want; it’s still the precautionary principle whether enshrined in law or not.

                    2. Courts are required to apply the law. Scientific epistemology is irrelevant.

                3. Sorry…a virus with a survival rate of 97+% isn’t quite doing it for me on the ’emergency’ or ‘deadly disease’ front, Dilan. Now I will completely honest and grant that mid-March to mid-April was pretty scary. That, I understood. Now in November, not so much.

                  Executives and Legislatures have wildly over-stepped their bounds. The judiciary needs to correct this. It is not a Team R thing or a Team D thing; it is an American thing. Our rights are being stripped away, and if Executives/Legislatures do it once, they’ll do it again at the next ’emergency’ that comes along.

                  1. It looks to me like you are attacking the process because you don’t like the outcome.

                    1. If by outcome you mean the wholesale stripping away of my civil liberties by the arbitrary whim of one man – a governor – then you’re damned right I am attacking the process. This was done outside our normal process, Sarcastr0.

                    2. Your outrage doesn’t make your argument any less inapposite.

              2. “loki13….No, I don’t think I am missing much of anything here.”

                Actually, you are. Do you know my most common piece of advice is to clients? Well, other than, “You know, litigation is rarely worth it”?

                “The reason we settle cases is because that way the parties decide how to end it. Not the judge.”

                You are assuming, already, that your rights aren’t being preserved. Or that they are somehow more “special” than other rights that get violated (quick- where is the outrage when police officers violate rights, or prisons, or any one of a number of issues where the law is also stacked against people and it is nearly impossible to get an injunction, let alone a PRELIMINARY injunction?).

                I’m sorry that you weren’t able to do something that was integral to your life. You know what? That’s happened to a lot of people! Because we’ve had … a friggin’ pandemic going on. I’m truly sorry that your observances could not be followed, just as I am sorry that my wife could not see her mother before she died. Because of a friggin’ plague. It kind of sucks, doesn’t it? That was also intolerable. And yet, it happened.

                So, yeah. I am sorry that things sucked for you. Like a lot of people. So get your recourse. Go on, get it! You have political and legal options.

                But you may not get a lot of sympathy from everyone. You may find that other people have had to deal with things that were also intolerable, because, again, a pandemic, and they don’t agree with you. And that’s fine- because these aren’t normal circumstances. And I wouldn’t want you (for example) to be the judge.

                You don’t get to be my black robed master, thank you very much.

        2. re: the Legislature’s responsibility – I completely agree. Unfortunately, the legislature delegated away that responsibility to the Executive branch who are announcing edicts without any sort of balancing at all. Unelected judges are no better but also no worse than executives.

          Again, this is a crappy situation that cries out for adults using logic and reason rather than fear and cognitive bias. We don’t have that – but neither does your model of judicial restraint do any better at getting us there.

          1. “Unelected judges are no better but also no worse than executives.”

            Incorrect. They are much worse. Because unlike the legislature and the executive branches of state governments, they have no consequences (being voted out).

            Again, this is about the immediacy. Judicial restraint, when it comes to the decisions of the legislature and the executive in emergency decisions, especially with regard to public health and contagious diseases, is called for.

            Given that there will be remedies in terms of damages and injunctions after full briefing and discovery … this is a specific example of exactly when judges should be most hesitant to second-guess the decisions of the other branches and inject their (un-elected) predilections into the mix.

            1. Impeachment is a form of being voted out.

        3. You sure as hell are advocating the precautionary principle — you want the courts to do a half-analysis, not a full analysis, instead of waiting for the legislature to do the full analysis.

          Blindest are the wilful.

          1. I want the courts to do a full analysis, but that full analysis is based on legal precedent, which includes that the government has a compelling interest in preventing death or infection.

            Again, see above, you guys are using “precautionary principle” as a mindless talking point. That’s a principle of scientific epistemology; it is completely orthogonal to what courts are supposed to be doing.

            1. No. You want the courts to do a half analysis before the trial which suits your desired outcome. Precautionary principle!

              1. Has nothing to do with my desired outcome. I might very well desire a different balance than the legislature chooses.

                It has to do with how the law processes a preliminary injunction in this sort of case.

    2. On the one hand, a church has to meet virtually for a year. On the other hand…

      I think it’s clearer when churches are being asked for the same rules as casinos.

  3. Old conservative thought:

    I would rather be governed by the first 2,000 people in the telephone directory than by my Black Robed Masters.

    New conservative hotness:

    Elections are dumb and voters are stupid, because they don’t always do what I want, so judges (that we appoint) should make the decisions for us. Better a council of guardians that self-government, amirite? Because self-government implies that, you know, there’s a government. And government sucks, man.

    1. I liked that one = I would rather be governed by the first 2,000 people in the telephone directory than by my Black Robed Masters

      There is some truth to that. 🙂

      1. It’s a re-purposing of the old William F. Buckley quote.

        It’s just a level of frustration I am increasing feeling. I honestly don’t understand a lot of what passed for “conservative” discourse any more. And I don’t mean the truly whack-a-doodle QAnon-type stuff. But basic “principles” arguments. I used to at least be able to find common ground (based on my disposition and my nature and upbringing as a Rockefeller Republican) on such things as judicial minimalism. Fiscal prudence. Rule of Law.

        More and more, it seems those are just buzzwords to be used as cudgels without any understanding why there principles matter.

        I don’t want the legislature, or the executive, or the judiciary to be the master of me. But (and this is, to quote Sir Mix-a-lot, a BIG BUT), the executive and the legislature are accountable to me (the royal me, as in the voters). I might hate what they are doing, I might disagree with them, but every two years there is another election, another opportunity to change things moving forward.

        …not with judges.* While that is empowering in terms of protecting, that is also the reason why I have been such an advocate for judicial minimalism. Just think of the most obnoxious person you know- or think of me, if that helps. 🙂 Imagine I’m the judge. Do you want to empower me to determine your fate? Always and forever?

        A bad government gets voted out on a regular basis. Not so much with bad judges.

        *Yes, if we are talking about state judges, there may be elections, or retention elections, or other variations. But these don’t work either, because nobody knows about their judges.

        1. Impeachment of a judge or Justice is a democratic process.

          1. …not every action a democratically elected government takes is part of the democratic process.

    2. SIlly comment. The Bill of Rights was enacted by the People, to protect against overreaching by the elected branches of government. When the judicial branch reviews the actions of the Legislature or the Executive against Constitutional provisions it is enforcing the will of the People against tyranny or panic of the moment.

      The comment you cite (which was by William F. Buckley) referred to the judicial penchant for policy making, where his comment is apt.

      The Bill of Rights, and other Constitutional provisions, in contrast, embody policies enacted by the People.

      1. Bored Lawyer:

        “See, this is how it works. When it’s a liberal judge, it’s policymaking, and it’s bad. BAD. They are just making stuff up.

        When it’s a conservative judge, it’s all about enforcing the Constitution. Which is good.

        See, the principle is really, ‘A liberal master is bad, but a conservative master is good. Because reasons.'”

        Thank you for Dumb-splainin’ that to me!

        1. One side enforces “rights” like abortion and sodomy that are nowhere mentioned in the Constituion, and in fact were universally sub ject to criminal penalties at the time the relevant Constitutional provision (mainly the 14th Amendment) was enacted.

          The other side enforces things like Freedom of Religion, which, whether you like it or not, is expressly mentioned in the Constitution.

          1. You proved loki’s point extremely hard right here.
            For things you like, judicial activism is fine.

            You want a government of conservative men and not of laws. The Founders realized that your kind of prideful hubris does not lead to liberty.

            1. Are you being dense or just tired?

              The provisions of the Constitution that actually were enacted by the People, like Freedom of Religion and Freedom of Speech, should be enforced.

              Those that weren’t should not be made up by the judiciary.

              That’s the difference between, roughly, the conservatives and the liberals.

              Scalia would have “liked” to ban abortion, ban gay marriage, indeed ban flag burning. (He said so as to flag burning.) But his position was, the Constitution says nothing about abortion or gay marriage. If a state legislature wants to allow abortion right up to the moment of birth, or recognize gay marriage (as the NY legislature did both), the nothing in conservative jurisprudence prevents that.
              And as for flag burning, the First Amendment bars states from banning it, so he voted to strike it down. Even though he considered it disgusting (as I hope most Americans do).
              There are lots of things I don’t like that Congress or state legislatures are free to enact or ban. I don’t want the judiciary to step in and enforce my preferences; I want public debate to influence the law the way I would like.

              1. Justices you disagree with are also enforcing the Constitution.

      2. The Bill of Rights was enacted by the People, to protect against overreaching by the elected branches of government.

        The Bill of Rights is subject to judicially constructed compelling interests tests that are very important. Again, as I mention above, nobody thinks free exercise protects human sacrifice.

        The Bill of Rights, and other Constitutional provisions, in contrast, embody policies enacted by the People.

        I know this is something I usually get into with Stephen Lathrop, but this is why people shouldn’t take that “popular sovereignty” metaphor seriously. No, the Constitution was actually not enacted by the People. It was enacted by small numbers of very privileged people. Blacks got no say. Indians got no say. Women got no say.

        Elected representatives aren’t precisely selected by the “People” (we still disenfranchise plenty of folks) but it’s a lot closer match. And judges, of course, aren’t elected by anyone.

        The Constitution supplies a framework, but it is unelected judges who give the thing content. None of it comes from “the People”. And we always have to remember that.

        1. Hence the importance of following the “original public meaning” of laws.

  4. South Bay needs to seriously be reconsidered in the wake of current events.

    COVID is a serious pandemic, no doubt. But also, the abrogation of our Constitutional Rights is a serious issue. The question is, how to resolve these issues?

    One issue with the many orders, are the many carve-outs, exemptions, selective enforcements, and selective “lack” of enforcement. In addition, Freedom of Religion (and religious assembly) should be given preference above mere commercial concerns, as the freedom of religion is written into the Constitution, while the “Freedom to shop”….is not. On one hand, many executive officials say one thing, that COVID is really bad, and requires all of these limitations on our Constitutional Rights.

    On the other hand….we see carve outs where Casinos are treated better than churches. We see our elected officials deliberately break their own executive orders, with no penalty other than “Oh, I knew I was breaking the order, but I’m sorry, I shouldn’t have”, while churches in the same position face fines and imprisonment. We see mass gatherings permitted, and even encouraged by our executive officers, as long as they are of the “correct” politics, while religious gatherings are forbidden and condemned.

    The courts need to view these actions, and understand the disconnect between what the elected officials “say” versus what they actually are doing. And because of this disconnect, they are effectively discriminating against religion. COVID-19 is bad…but not so bad that politically acceptable gatherings are broken up. COVID-19 is bad….but not so bad that Governor needs to cancel his dinner with more than 10 people, despite whatever order he’s given. COVID-19 is bad…but not so bad that a mayor can’t be given a special exemption to travel to a high infection area for political purposes….

    But COVID-19 is always bad enough to sharply limit religion?

    Look at the disconnect…and uphold our Constitutional Rights.

    1. COVID is a serious pandemic, no doubt. But also, the abrogation of our Constitutional Rights is a serious issue. The question is, how to resolve these issues?

      Again, that’s circular. It isn’t abrogation of constitutional rights until you establish that the virus is not being transmitted, because nobody has the constitutional right to transmit a deadly virus.

      1. Sigh.

        Banning people from being able to freely practice their religion is an abrogation of their rights. It’s not an unlimited right, and you may have a good reason to abrogate their right, but that doesn’t mean that stopping them from being able to freely, peacefully worship in their own house of worship isn’t an abrogation of their rights.

        1. So banning human sacrifice is an abrogation of freedom of religion?

          That makes zero sense.

          1. If a religion has a tenet of human sacrifice, then yes, banning it is an abrogation of their religious freedom.

            But, as I noted, freedom of religion is not an unlimited right. None of the rights are (Freedom of speech, Freedom of the press, etc.). Often, they are balanced with other rights and freedoms granted by the Constitution. Understanding this is important.

            1. I don’t think you do.

              Until you establish that the case is not within one of the limitations or exceptions, you haven’t established your right to preliminary injunctive relief. And in this case, that means you have to show that your gathering will not cause death or transmit the virus.

              1. “that means you have to show that your gathering will not cause death or transmit the virus.”

                That is, statistically speaking, impossible.

                1. Let’s put this in context.

                  The flu is a deadly disease. Statistically speaking, any gathering has a chance of spreading the flu. Ergo, any gathering of any kind can be shut down because it can potentially transmit the flu.

                2. Well, then, you lose, don’t you.

                  1. “Well, then, you lose, don’t you.”

                    And now you’re back to imprisoning or executing everyone with HIV….

                    1. No, because the political branches aren’t going to do that.

                      As Scalia once said in one of his more lucid moments, the Constitution doesn’t solve every human problem.

      2. Dilan,’Your entire argument begs the question. Neither you nor anyone else knows the mitigating effects of a lockdown or the costs of the lockdown. we have been in a lockdown in California since March 15. Yet more than 1 million have been infected and more than 18,000 have died.
        At what cost, we do not know. But we can count canceled surgeries and diagnostic tests. We can tally increases in suicides (for whatever reasons), we can assess economic losses and use the equivalent to epidemiology to make an effective body count. How accurate are these? No one knows. How many would have died in CA without a lockdown? No one knows.
        When you say “Do this or people will die,” you are using the worst kind of sophistry, that based on fear mongering.

        1. Neither you nor anyone else knows the mitigating effects of a lockdown or the costs of the lockdown.

          Correct. Which is why unelected judges can’t decide these things on limited records in preliminary injunction proceedings.

          And it is not sophistry. As far as the judge in one of these cases is concerned, the only thing that is before him or her is whether the regulation meets whatever level of scrutiny applies. That means if there are deaths and infection that are prevented, that’s enough to sustain the law. The downstream effects you are talking about are downstream. The argument “I should get to murder grandma because maybe it will prevent someone else from committing suicide” is an argument for a legislature, not a court.

          1. What the HELL is wrong with you?

          2. But the the executive does not know what deaths are prevented either. You’re just assuming the conclusion that you want to prove. That is a sophistry.

  5. SIlly comment. The Bill of Rights was enacted by the People, to protect against overreaching by the elected branches of government. When the judicial branch reviews the actions of the Legislature or the Executive against Constitutional provisions it is enforcing the will of the People against tyranny or panic of the moment.

    The comment you cite (which was by William F. Buckley) referred to the judicial penchant for policy making, where his comment is apt.

    The Bill of Rights, and other Constitutional provisions, in contrast, embody policies enacted by the People.

  6. John Roberts over-reaching and making a mess.


    1. Look who you’re reading, and check for a second opinion that’s got a bit less of a hate-on, and a bit more care for the facts maybe.

  7. It seems to me from the comments that many people don’t recognize Smith as controlling precedent for religious exercise apart from the pandemic. Sadly, I expect the Court to significantly scale back Smith without expressly reversing it in Fulton.

    1. Even under Smith, the state cannot discriminate against religion. An order that says no public gatherings for religious services, but we allow public gatherings to protest racism (let alone we allow public gatherings to watch a performance of Hamilton), violates the First Amendment, even under Smith.

      1. Perhaps it does. Perhaps not. Details matter. I get the impression the details don’t matter to many in this forum.

        1. Maybe Smith was incompletely [not wrongly] decided, Josh R. It could just be that the Justices could not have foreseen what we have now. With better foresight, the Smith decision might have been different.

          Wasn’t it Justice Barrett during Fulton arguments who asked if SCOTUS could decide the case without touching Smith?

          1. Justice Barrett’s comments are part of the reason I said I expect the Court to significantly scale back Smith without expressly reversing it.

  8. Hearing a case before the Court of Appeals has is hardly a “regular” appeal. And Justice Roberts seems disinclined to have federal courts step in on emergency bases outside regular procedures on these matters.

  9. “Shadow Docket” sounds like a legal thriller.

    Or like the cases heard by the Secret Court:

  10. Chief Justice John Roberts is looking more like Chief Justice Warren E. Burger every day. And it’s not a good look.

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