The Volokh Conspiracy

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New York's COVID-19 Microcluster Whac-A-Mole Game

The ad hoc creation of red and orange zones are capable of repetition, but will evade review.


Last week I blogged about Agudath Israel's application to the Supreme Court. (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). On November 20, New York filed its response. And, also on November 20, New York downgraded the relevant neighborhood in Brooklyn from an orange zone to a yellow zone. The brief explains, "Consequently, there are currently no red or orange zones anywhere in New York City, and both of the synagogues for which Agudath Israel seeks relief are now located in yellow zones." As cases skyrocket throughout the country, New York removed restrictions in the very neighborhood that is currently at issue before the Supreme Court. But don't even think about leaving your home to celebrate Thanksgiving!

Agudath Israel addressed this turnabout in its reply brief:

Aware that the Cluster Initiative is in trouble, the Governor's first response in this Court is to feign retreat. On the very day his Opposition in the Diocese of Brooklyn case, No. 20A87, was due, the Governor abruptly announced that he was going to re-designate the Brooklyn zones from Orange to Yellow—even though these areas do not satisfy his own announced criteria for downgrading to Yellow, see infra 10–11—and he now says there are "no critical or exigent circumstances" to warrant relief, Opp. 17–18 (capitalization altered).

This reversal is all-too familiar. Over the past nine months of COVID litigation, there has been a familiar pattern. When a case is on the door step of the Supreme Court, the government suddenly realizes that the restrictive measures zealously defended in the lower court were no longer necessary. And, graciously, the government relaxes the policy. An optimist would praise such government flexibility. A cynic would counter that these reversals are motivated, at least in part, by a desire to moot the case. Count me in the latter camp. Alas, people of faith are stuck playing this never-ending game of Whac-a-Mole.

Fortunately, there is a way forward. The Supreme Court has recognized an exception to the mootness doctrine known as "capable of repetition yet evading review." This exception is used in the context of abortion litigation, as a pregnancy will last only nine months–not enough time to litigate a case to completion.

Here, the COVID restrictions are changed on a weekly, and sometimes daily basis. These ad hoc revisions are seldom explained with any degree of precision. And often, the government ignores its own guidance to relax restrictions before a court filing deadline. Perhaps those frequent changes reflect the fact that the policy itself is substantively valid. That is, the Governor is making changes based on evolving facts on the ground, and ultimately relief is not warranted. But the frequent changes should not deprive the Court of jurisdiction to at least assess that rationale.

True enough, the Brooklyn temples are not currently in the orange zone. But we are dealing with an "exceptional situation." Agudath Israel "can make a reasonable showing that [it] will again be subjected to the alleged illegality." City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Indeed, on November 20, Governor Cuomo said that all of New York City might find itself in an orange zone by early December. His Secretary said, "We determine whether or not we have to be in a position to create additional micro-clusters based on what New Yorkers do in the next week or two."

If the Court dismisses this case because of the eleventh-hour change, the Governor would be free to reimpose the exact same restrictions in two weeks. The Court should not let itself get played again by New York–especially after the state's efforts to moot New York State Pistol & Pistol Association. Here, the Court should still find the controversy is live to consider whether the Governor's policy is valid.

Update: Brett Stephens used my whac-a-mole imagery in the Times:

Another was the game of Hot Zone Whac-a-Mole that Cuomo tried to play with the court as the case was working its way through the legal system, by switching the affected areas' designations back to "yellow." That was enough to persuade Roberts and other dissenters that they could leave well enough alone, at least for now. But, as Gorsuch noted, one also has to be modest about judicial modesty: "We may not shelter in place when the Constitution is under attack. Things never go well when we do."