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Roman Catholic Diocese Part IV: Governor Cuomo's Orders are Capable of Repetition, and Will Not Escape Review

The majority held that New York could reimpose the restrictions at any point. There was no need to wait.


This post is the fourth installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay "superprecedent." Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause.

Earlier this week, I described Governor Cuomo's microcluster regime as a whac-a-mole game. Whenever any responsive pleading is due, the City magically finds that the challenged restrictions can be lifted. I suggested that the Court should rely on the capable-of-repetition-yet-evading-review standard.

Diocese does not adopt this standard expressly, but it does hint at it.

First, the Court says this controversy is not moot.

There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particularareas without prior notice.

The Court does not use the phrase "capable of repetition yet evading review," but the first cited case, FEC v. WRTL, does use that phrase.

As the District Court concluded, however, these cases fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S. Ct. 2652, 2662, 168 L. Ed. 2d 329 (2007)

The other cited case, Friends of the Earth, relies on the related voluntary cessation doctrine.

In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708, 145 L. Ed. 2d 610 (2000)

Going forward, district courts now have a green light to use "capable of repetition yet evading review" and "voluntary cessation" where the Government modifies the COVID-19 regime at the eleventh hour.

Second, the Court explains why the Governor's last-minute modification does not end the case:

If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief canbe obtained. At most Catholic churches, Mass is celebrated daily, and "Orthodox Jews pray in [Agudath Israel's] synagogues every day." Application in No. 20A90, at 4. Moreover, if reclassification occurs late in a week, as has happened in the past, there may not be time for applicants to seek and obtain relief from this Court before another Sabbath passes. Thirteen days have gone by since the Diocese filed its application, and Agudath Israel's application was filed over a week ago. While we could presumably act more swiftly in the future, there is no guarantee that we could provide relief before another weekend passes. The applicants have made the showing needed to obtain relief, and there is no reason why they should bear the risk of suffering further irreparable harm in the event of another reclassification.

I've litigated this issue now for several weeks. I can attest how frustrating it is when the government changes the policy, but can reimpose the restrictions at any point.

Third, Justice Gorsuch, who came to brawl, was far more cynical. He suggests that New York was trying to frustrate the Court's jurisdiction. He wrote:

It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to acton their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the "off " switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.

Gorsuch observed (as I wrote in my post) that all of New York City may soon be placed under an orange regime.

Both Governor Cuomo and Mayor de Blasio have "indicated it's only a matter of time before [all] five boroughs" of New York City are flipped from yellow to orange.

J. Skolnik, D. Goldiner, & D. Slattery, Staten Island Goes 'Orange' As Cuomo Urges Coronavirus 'Reality Check' Ahead of Thanksgiving, N. Y. Daily News (Nov. 23, 2020), u-story-html. On anyone's account, then, it seems inevitable this dispute will require the Court's attention.

Now that the Court has ruled, I suspect New York City will be put back in code orange.

Fourth, Chief Justice Roberts would not have decided this case because, at present, the applicants are not subject to Code Red or Code Orange restrictions. He wrote:

I would not grant injunctive relief under the present circumstances. There is simply no need to do so. After the Diocese and Agudath Israel filed their applications, theGovernor revised the designations of the affected areas.None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions.

Thus, there is no need to decide these issues:

It is not necessary, however, for us to rule on thatserious and difficult question at this time. The Governor might reinstate the restrictions. But he also might not.And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things nowstand, however, the applicants have not demonstrated their entitlement to "the extraordinary remedy of injunction." An order telling the Governor not to do what he's not doing fails to meet that stringent standard.

That last sentence may be quoted in a California v. Texas opinion. Roberts can write.

Justice Breyer, also in dissent, argued there was no need to intervene.

Instead, the applicants point out that the State might reimpose the red or orange zone restrictions in the future.But, were that to occur, they could refile their applications here, by letter brief if necessary. And this Court, if necessary, could then decide the matter in a day or two, perhap seven in a few hours. Why should this Court act now without argument or full consideration in the ordinary course (and prior to the Court of Appeals' consideration of the matter)when there is no legal or practical need for it to do so? I have found no convincing answer to that question.

I am skeptical the Court can act in a manner of hours. Days perhaps. But not hours. This is not like a death penalty case.

Justice Kavanaugh responded to the Chief Justice with respect to Court's injunctive relief:

I part ways with THE CHIEF JUSTICE on a narrow procedural point regarding the timing of the injunctions. THE CHIEF JUSTICE would not issue injunctions at this time. As he notes, the State made a change in designations a few days ago, and now none of the churches and synagogues who are applicants in these cases are located in red or orange zones. As I understand it, THE CHIEF JUSTICE would not issue an injunction unless and until a house of worship applies for an injunction and is still in a red or orange zone on the day that the injunction is finally issued. But the State has not withdrawn or amended the relevant Executive Order. And the State does not suggest that the applicants lack standing to challenge the red-zone and orange-zone caps imposed by the Executive Order, or that these cases are moot or not ripe. In other words, the State does not deny that the applicants face an imminent injury today. In particular, the State does not deny that some houses of worship, including the applicants here, are located in areas that likely will be classified as red or orange zones in the very near future. I therefore see no jurisdictional or prudential barriers to issuing the injunctions now.

There also is no good reason to delay issuance of the injunctions, as I see it. If no houses of worship end up in red or orange zones, then the Court's injunctions today will impose no harm on the State and have no effect on the State's response to COVID–19. And if houses of worship end up in red or orange zones, as is likely, then today's injunctions will ensure that religious organizations are not subjected to the unconstitutional 10-person and 25-person caps. Moreover, issuing the injunctions now rather than a few days from now not only will ensure that the applicants' constitutional rights are protected, but also will provide some needed clarity for the State and religious organizations.

The last sentence is key. Now, New York will have to come up with a more narrowly tailored scheme if the city is placed back in Code Orange. The Houses of Worship will not have carte blanche to do as they wish.

NEXT: Roman Catholic Diocese Part III: The Court Rejects the "Comparator" Approach to the Free Exercise Clause

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44 responses to “Roman Catholic Diocese Part IV: Governor Cuomo's Orders are Capable of Repetition, and Will Not Escape Review

  1. She proved that she is an “I will keep an open mind” piece of shit.

    1. While Robert’s sexual preferences may be questionable, I don’t think the appropriate pronoun is “she”.

    2. She “proved” nothing of the sort.

      Her track record gave anyone paying attention reason to believe she’d take 1A rights seriously, and this is an easy case for someone who is ACTUALLY an “originalist.”

      It’s Roberts’ vote / votes which are hard to square with any past claim of constitutional fidelity.

    3. I agree Kagan is really showing her lack of an open mind here. The dissent is what I expect from pragmatist Breyer. But Kagan?

  2. Also a coward piece of sack. Per Curiam with 3 concurrences and 2 dissents, my ass. At least have a courage to sign your name.

    1. You don’t seem to understand how courts work . . .

  3. Finally, SCOTUS is taking on blue state governors who flexed their inner tyrant muscles. It certainly took long enough.

    To Justices Alito, Gorsuch, Thomas, Kavenaugh and Barrett, I simply say: Thank you.

    1. I thank them, too. Their conduct seems destined to hasten the enlargement of the Supreme Court.

      Enjoy it while you can, clingers.

      1. I used to live outside the US. Peru since independence has had 12 constitutions and 4 placeholders, not that anyone ever observed any one closely. Packing the Court will give the US the benefit of Peruvian jurisprudence; ‘this is the law, inviolate and permanent – until tomorrow.’
        Packing the court with Living Constitution justices will result in interpretations like John Paul Stevens’ argument that the Second Amendment never allowed citizens to carry arms privately, but rather the right to join the army – or to be drafted. The other nine amendments of the Bill of Rights limited what the federal government could do to the citizens, but the 2nd could be interpreted, if you hold your breath, close your eyes, and try real hard, to mean you can have the right to be drafted and sent off to die.
        A packed court is completely capable of declaring the Electoral College to be unconstitutional, or lead to the establishment of a special court to outlaw hate speech and a system to enforce those new laws.

  4. This part of the opinion is going to do wonders for liberty in states who play the “the order is no longer in effect” game just before SCOTUS rules against them. Particularly on 2A rights.

    1. My exact thoughts too.

  5. “I’ve litigated this issue now for several weeks. I can attest how frustrating it is when the government changes the policy, but can reimpose the restrictions at any point.”

    The reality-based world can be complicated and challenging.

    Those pressures likely help to explain why some gullible people seek refuge in the illusory world of superstition.

    1. You really are Bruce Hay under a pseudonym, aren’t you?

  6. I tend to agree with Roberts here. The Court should not be so openly distrustful of governmemts they disagree with, and doing so conveys partiaanship.

    It would have been enough to let New York off with a warning that if they impose the restrictions again, the Court will decide the matter quickly.

    It’s not like these sorts of restrictions wouldn’t come up for review again in some other jurisdiction.

    The court should be reluctant, not eager, to issue injunctions. Eagerness is a sign that the court is off balance. So is too easy a willingness to assume that government is acting in bad faith.

    This should be as true for the conservatives in religious liberty cases as it was for liberals in e.g. abortion cases.

    1. When the government restricts a constitutional right, that’s exactly when the courts should be “openly distrustful.”

      When the government restricts a constitutional right through executive action, the courts should be very skeptical.

      When the executive is gaming the system to keep the court from putting a limit on the executive’s power, the courts should put a stop to it.

      1. But the Supreme Court had previously upheld, by 5-4 decisions, arguably similar restrictikns in California and Nevada.

        To regard people as criminals for complying with established law just because one disagrees with it (and now has a new-found majority to change it) is the height of judicial arrogance. I continue to think the Ex Post Facto clause should apply to the judiciary. They are part of the problem it was ijtended to solve, and this is an example.

    2. The Court’s primary, if not only, purpose is to uphold the Constitution. The amount of deference they show government [or government agencies – viz. Chevron] is procedural. Constitution trumps procedure [or should] every time.

      If individuals are being deprived of Constitutional rights, de jure or de facto, or facing the threat thereof, at this moment, it would be abhorrent to liberty to say “Let’s wait until the issue comes up again.”

      Or perhaps you meant that protecting Constitutionalism and Liberty is partisan. Given the last few months, you are probably correct about that.

    3. The big problem that nobody mentions is that the Governor is acting as an autocrat. If he allowed the legislature to legislate and exercised his executive power to execute laws, the legislature would’ve debated the restrictions to make that they were sensible.

    4. I tend to agree with Roberts here. The Court should not be so openly distrustful of governmemts they disagree with, and doing so conveys partiaanship.

      Funny. The only way the Constitution got ratified was the addition of the Bill of Rights. Because governments could not be trusted.

  7. Compare this to the NYSRPA vs New York City second amendment case last year, which was mooted. Using the reasoning in this PC, the NYSRPA would not have been mooted.

    1. But that’s a 2nd class right, and this is a 1st class right. And, besides, the Court has a 5-4 conservative majority now, it was more 4-1-4 last year.

    2. I was wondering about that and hoped Prof Blackman would opine on it and other similar cases.

    3. Different situations. In NYSRPA the city ordinance was challenged but a change in state law mooted it. Here it was the same body making and removing the rule. In the former case, they couldn’t change it back as easily as here.

      1. What’s to stop the state from passing a similar ordinance?

  8. Whatever the merits, this decision will result in an uptick of infections – and ultimately, deaths – in New York City.

    Part of the unique problem of religious institutions in the city is that percentage-based capacity limits are difficult to enforce – and generally, not enforced – by our city’s police officers and bureaucrats. To say nothing of measures that these institutions could take, but aren’t taking, to limit transmission.

    And now, as Josh so ably notes, Cuomo’s options under the existing regulatory framework are limited. If he wants to limit transmission through our churches, he’ll have to clamp down harder on all of our non-essential businesses. If he wants to give our businesses the ability to survive and provide services to city residents, he’ll have to tolerate churches, synagogues, and mosques being super-spreading locations.

    And all for what? Religious “freedom?” We’re burning lives away so that religious institutions can collect their tithes. It’s bullshit, and the conservative activists responsible for hoisting this on the city are responsible for the widespread health or economic consequences it will have.

    1. Guess “liberty” is not in your dictionary. Liberty is a part of this ruling too.

      But since you seem to focus on results over liberty, why don’t you tell us of the negative results in your cost/benefit analysis?

      1. The Constitution is not a suicide pact

        1. Best guess at present is that the Covid-19 virus is about 2-3 times more deadly than the flu we see every year. So, is the imposition of draconian laws limiting religious freedom and gatherings outside permitted political protests and/or celebrations based on 1.4 times flu deaths? 1.7? 2.1?
          It is not nearly that we are All Gonna DIE! from this virus, yet the restrictions you seem to love are justified by this fear.

          1. Comparing COVID to flu, in terms of their respective mortality rates, is misleading. You need to account for other effects of the pandemic, as well, including COVID’s rapid propagation, its impact on our health system, and the ways in which that rapid propagation and overwhelming of our health system will result in their own deaths – e.g., as cancers get diagnosed, preventable conditions go untreated, etc.

            1. Said impacts are less than several other pandemics since WW II.

              Most of the effects are entirely a result of panic over-reaction from politicians out to expand state power.

      2. If you’re going to disagree with me, you might start by articulating what position it is, exactly, you’ve decided to ascribe to me, since I can’t really guess at what it is you think you’re responding to, here.

        For what it’s worth, I’m ambivalent about shutdowns as a coronavirus management strategy. I recognize that they come at significant cost, including beyond the first-order economic impacts, and I’m not entirely confident that the benefits to be realized from them – i.e., reduced COVID infections and deaths – outweigh those costs.

        What irritates me about this, more than anything, is that Josh, et al., are pushing for a legal result that will severely constrain governments in how they fight this pandemic, leaving them essentially only two tools – severe, across-the-board shutdowns – including of businesses that are essential to simply sustaining life – and doing nothing. That means that, because some synagogue in Brooklyn can’t find a way to celebrate weddings without drawing hundreds of attendees from across the city’s five boroughs and beyonds, Cuomo will have to choose either to let them spread the virus freely (an option he is unlikely to take) or close my neighborhood restaurants and grocery stores.

        This will result, in other words, in less liberty, not more.

        1. How dare they enforce Constitutional constraints whose only purpose is to hobble politicians taking advantage of the slightest perceived crisis to expand their power!

          1. There’s no actual caselaw that says this is a constitutional constraint, at least until last night.

            Seriously, nobody thinks the free exercise of religion is absolute. Human sacrifice, for instance, is not constitutionally protected. So why is murdering people through a church service constitutionally protected.

            I mean, if these guys could show that there was no chance of their services killing anyone, I’d agree, they should win. But they can’t show that.

            1. It’s almost funny how “human sacrifice” became the freedom of religion boogeyman in the same way that “nuclear weapons” are the Second Amendment boogeyman.

  9. Good. The courts really need to stop deferring to the executive in an “emergency.” The times constitutional rights are most in danger is an emergency! The courts should think rationally about the situation at hand and make a correct ruling.

    Now, if only the courts agreed to do something similar during the travel ban case or Korematsu …

    1. It was an emergency 7 months ago but isn’t anymore.

  10. I dont quite remember the name of the case, but there was a case where the Supreme Court was deciding a separate case and then congress stepped in and changed the law, and then the plaintiff came back and said, hey you guys can’t change the law in the middle of a court case specifically targeting one person. And there was some discussion of Article III and can Congress really pass a law saying, in A v. B, A wins?

    The court held that in the specific case, you could do that, but generally you can’t. In other words, there are restrictions on the ability of Congress to overrule the Supreme Court in a targeted fashion but not a lot of restrictions, and it didn’t apply to the case at hand.

    Robert’s and Sotomayor was in the dissent in that case, arguing article III DID prevent congress from overruling the courts in the middle of a case. I found that position ridiculous, but it seems strange that this case was not citied in the mootness arguments. Or that now apparently Robert’s and Sotomayor are saying something close to the opposite.

    1. You are thinking of Patchak v Zinke

  11. Roberts has shown himself to a full leftist Marxist piece of shit.

    1. Not really – just in mortal fear of rocking the boat.

  12. The Majority gets it right in theory, up until “religious” people start dropping dead from attending indoor mass gatherings for extended periods of time. That’s when the “law of the NYC Jungle” will kick in and blame the Court for being unmitigated blowhards!