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Roman Catholic Diocese Part I: The End of the South Bay "Superprecedent"

In six months, Chief Justice Roberts's South Bay concurrence was cited 114 times. The 115th citation sank it.


Shortly after midnight on Thanksgiving, the Supreme Court decided Roman Catholic Diocese of Brooklyn v. Cuomo. This decision ushered in the new Roberts Court. The 5-4 Court ruled unconstitutional New York's occupancy limits on houses of worship. Justice Barrett cast the deciding vote. I have now finished reading the per curiam opinion, Justice Gorsuch's concurrence, Justice Kavanaugh's concurrence, Chief Justice Roberts's dissent, Justice Breyer's dissent, and Justice Sotomayor's dissent. I plan to write several posts discussing various aspects of the decision.

Here, I will begin with an ending. Chief Justice Robert's South Bay concurrence is no longer a super-precedent. Really, it was never even a precedent in the first place. Yet, courts had cited it 114 times in the past six months. But Diocese will likely be the last citation. Courts can no longer look to the Chief's opinion as the definitive statement for pandemic cases. I'm sure some will try. And there are five votes to reject those efforts.

In South Bay, Chief Justice Roberts wrote that 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.'" The Diocese per curiam provided a more traditional, and easier-to-satisfy test:

The applicants have clearly established their entitlement to relief pending appellate review. They have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.

"Likely to prevail" is a lot easier to satisfy than "indisputably clear" right to a remedy. Really, South Bay was never designed for the lower courts to apply. It was always a standard for a Supreme Court injunction pending appeal. But lower courts reflexively cited that standard.

The dissenters mourn the passing of the Chief's South Bay concurrence–even though they didn't join it. Indeed, Justice Breyer uses the pronoun "we" to refer to a solo concurrence he did not join.

Relevant precedent suggests the same. We have previously recognized that courts must grant elected officials "broad" discretion when they "undertake to act in areas fraught with medical and scientific uncertainties." South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring) (slip op., at 2) (alteration omitted).

Likewise, Justice Sotomayor treated South Bay and Calvary Chapel as precedents. The latter consisted of an unsigned order without any analysis.

South Bay and Calvary Chapel provided a clear and workable rule to state officials seeking to control the spread of COVID–19: They may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict.

The majority did not formally discard South Bay. But it has now been buried at sea. And Justice Gorsuch fills the concurrence's shoes with cement. Neil came to brawl here.

Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic's early stages based on the newness of the emergency and how little was then known about the disease. Post, at 5 (opinion of BREYER, J.). At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic's shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free ExerciseClause. Today, a majority of the Court makes this plain.

I don't think the majority formally repudiates South Bay. Indeed, the Court distinguishes New York's orders from the California order. But going forward, Diocese will be the controlling standard. And, when a COVID case reaches the Court on certiorari, I suspect the Chief will join the conservatives.

NEXT: On Thanksgiving 2020, the New Roberts Court has Arrived

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8 responses to “Roman Catholic Diocese Part I: The End of the South Bay "Superprecedent"

  1. It seems that the answers you made to the Jacobson question were accurate. Quoting Justice Gorsuch, “To justify its result, the concurrence reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts, 197 U. S. 11 (1905). But Jacobson hardly supports cutting the Constitution loose during a pandemic. That decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction. Start with the mode of analysis. Although Jacobson predated the modern tiers of scrutiny, this Court essentially applied rational basis review to Henning Jacobson’s challenge to a state law that, in light of an ongoing smallpox pandemic, required individuals to take a vaccine, pay a $5 fine, or establish that they qualified for an exemption. […] Put differently, Jacobson didn’t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so. […] In Jacobson, individuals could accept the vaccine, pay the fine, or identify a basis for exemption. […] In fact, Jacobson explained that the challenged law survived only because it did not ‘contravene the Constitution of the United States’ or ‘infringe any right granted or secured by that instrument’. Tellingly **no Justice now disputes any of these points.** […] Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?”

    1. Mind, I can’t say I’m happy with the idea there that it doesn’t violate the constitution to fine you for making a choice you’re entitled to as a matter of right, because you have a choice as to whether to pay the fine or comply.

  2. Justice Barrett is no more the “deciding vote” than any other justice in the majority.

    1. Yes! This continued usage bugs the heck out of me. You can sort of get away with it in sports, where later points somewhat depend on what happened before, or during sudden death playoffs, but even that still pretends that previous scoring was irrelevant.

      And even minority votes matter — if one of the minority had reversed, it would be 6-3 — would anyone claim that two votes were deciding? What if 9-0 — were five votes deciding?


  3. “The Chief” will not join the majority. As an acolyte of Larry Tribe, his predisposition is toward big government and elite-ochracy.

    1. But he believes in precedent, and now there is a new precedent, much stronger than the previous one, even if he didn’t write it.

  4. Justice Roberts is an Ivy indoctrinated part of the Deep State. He should be impeached for his decisions. He is a dangerous, big government, neo-Marxist.

  5. Gorsuch’s concurring opinion is some of the clearest, most concise — beautiful! — writing on the 1st Amendment I’ve ever read. This Court has a lot of work immediately ahead. One of the things I’m giving thanks for today is the conservative SCOTUS majority. CJ Roberts can choose to join them or write the minority opinions. The Roberts Court is gone.