SCOTUS Creatively Punts in COVID Appeal from 9th Circuit: Grants Cert Before Judgment, then Vacates and Remands

Given the likely trajectory of COVID-19, the Court may never have to decide a pandemic case on the merits.


On September 2, 2020, the Central District of California denied a preliminary injunction in Harvest Rock Church v. Newsom. The five-page order upheld the Governor's restrictions on houses of worship, based on the reasoning of the (dearly departed) South Bay concurrence:

"Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread."

One month later, on October 1, the Ninth Circuit denied a motion for an injunction pending appeal. Judge O'Scannlain dissented from that order. He argued, correctly, that South Bay was not a binding Supreme Court precedent:

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).

Harvest Rock did not seek an emergency application from the Supreme Court for nearly two months. (I am not entirely certain why, but the church seems to have been concerned about pending enforcement actions.) On November 23, 2020, the church filed an application for injunctive relief with the Court. Harvest Rock sought a ruling by November 29. Circuit Justice Kagan said nope, and set the response due by November 30. And on November 25, the Court decided Diocese.

Today, the Court issued an unusual order in Harvest Rock.

The application for injunctive relief, presented to Justice Kagan and by her referred to the Court, is treated as a petition for a writ of certiorari before judgment, and the petition is granted. The September 2 order of the United States District Court for the Central District of California is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020).

What do we make of this order? I see it as a creative punt. I can't recall an instance where the Court granted certiorari before judgment only to then vacate and remand that case in light of a non-merits decision. In other words, the Court GVR'd a shadow docket case in light of another shadow docket case. The more expected route would be for the Court to simply deny cert, and a few Justices would issue a statement respecting the denial of cert, saying "Hey lower court, you should really take another look at this case in light of our recent injunction." But here, the Court–without recorded dissent–GVR'd the entire case.

What happened here? It is possible there were four votes to grant certiorari before judgment, and hear the case ASAP. But, there were likely vehicle problems, as the Governor would almost certainly revise the regulations to moot out the appeal. Thus, the compromise position was to take the unusual step of cert before judgment, with a vacatur of the district court decision.

But, and here is the big but, there is no injunction in place. Vacating the district court decision leaves the Governor's order in full effect. Another two or three full months could elapse before this case gets back to the Supreme Court. Harvest Rock remains subject to the very regime they sought emergency relief on. This punt leaves the church in a very difficult place. I'm surprised Thomas and Gorsuch did not dissent from the vacatur and remand.

It took more than three months from the date of the District Court's decision to the Supreme Court's ruling. Some of that delay was attributable to the plaintiffs. But litigation still takes time. In Diocese, Justice Breyer suggested there was no need for the Court to act with haste because the Justices could "decide the matter in a day or two, perhaps even in a few hours." No. Litigation takes time. The Court was correct to end Governor Cuomo's whac-a-mole game. Alas, Governor Newsom can keep moving the goal posts at the French Laundry.

In any event, give the likely trajectory of the COVID-19 vaccine, it is unlikely the Court will ever have to decide a pandemic case on the merits. Shadow docket rulings can keep things moving along for the next few months. And, I suspect, Fulton will change the landscape of Free Exercise cases. There will be plenty more GVRs come June. And eventually, all of the COVID orders will be lifted. I am grateful that Diocese, and not South Bay will be the final word on this issue.

NEXT: Coronavirus Deaths Return to March/April Levels in Europe, U.S.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “The September 2 order of the United States District Court for the Central District of California is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020).”

    My reading on this is that this case is now moot because SCOTUS now has the cited case as precedent (which it didn’t have when it granted cert — nor which the 9th Circuit did) and hence it is the 9th Circuit’s job to reverse.

    1. But because you have no idea what you’re talking about, pretty much everything you said is totally wrong.

  2. Is Diocese really a shadow docket case? It doesn’t appear to be one. Not only does it have an opinion of the court (per curiam) , it is reported in the Suoreme Court’s website in the section on opinions of the court, not in the section on opinions related to orders.

    This, together with the current pre-judgement GVR,all together seems to be strong evidence that the Court regards it as a full precedent, not a non-precedential preliminary order.

    1. In other words, it appears the Supreme Court has indeed decided a “pandemic case on the merits.” And that case is Diocese.

    2. The opinion’s analysis on the likelihood of success on the merits is cursory.

  3. Pay attention folks. The war of religion isn’t going to magically stop when the pandemic ends. This is only the opening salvo into a completely new front. The left has been clamoring to close churches, deny them non-profit status, and ban congregations from assembling. There will be renewed intensity in this attack on one of our most basic and fundamental freedoms.

    1. :. . .deny them non-profit status. . . . ”

      What’s wrong with that?

      1. They’re not making profits, that’s what’s wrong with it.

        1. Kind of a tautology. Plenty of them operate on a cash-flow positive basis.

      2. As long as we include colleges and leftist 501c3s…

        1. “colleges…”
          The ‘church’ of the Left.

          But naturally that is why they want to draw the distinction. The left doesn’t want to go by the same rulebook they apply to their enemy. And that is the crux of the problem. The left wants two sets of rules and really a society must have one set of rules by which government works in order for the society to function properly. Which is why we are in the jam we are current in…

          1. Kind of like conservatives opposing background checks and waiting periods for gun purchases while advocating drug testing requirements for welfare recipients? Typical Rino.

            1. Yeah because you have a constitutional right to welfare….

              If you are going to try to draw a parallel to prove your point at least find something that is similar enough…

            2. A more apt analogy would be the Left’s demands on what is required to buy a gun as opposed to their opposition to any security when it comes to voting.

    2. I would love to wager on this. Can I interest you in a bet that those things you list will not, here in reality, happen? Maybe a bottle of alcohol or other drink of the winner’s chosing? Better yet, we could do three. One for each of your assertions. If, by the end of 2021 (assuming the pandemic is over), the federal government hasn’t 1) closed churches, 2) denied major churchs non-profit status, or 3) banned congregations from assembling (non-pandemic related or course), I would get 3 bottles from you? You up for it? We could try and find a impartial judge if you like.

      1. C’mon Jimmy. Put your money where you mouth is. I know you’re still active in the thread, but you’re too cowardly to actually put some real consequences to your idiotic predictions. Let’s do this. Let’s see how many churches get closed or congregations get banned from congregating (outside of the pandemic, of course) when Biden takes over. Or are you completely aware at how silly you sound.

        1. Color me surprised that Jimmy refuses to put his money where his mouth is. It’s easy to spout a bunch of nonsense, but actually standing by your idiotic predictions is too much for Jimmy.

    3. Lots of evangelicals (Baptists) voted for Biden. Recent surveys show at least 50% of LGBT Americans are members of churches.

      Are you *sure* this “left” you’re speaking about isn’t something you should instead discuss with a licensed professional?

    4. Speaking as a former member of (and occasional lawyer for) Harvest Rock Church in the ‘90’s, with some legal work for Grace Community Church as well, I’d say you have no idea what you are taking about.

  4. Question: Does requiring a church to pay taxes in any way prohibit (def?) the FREE (def?) exercise of religion? Does prohibit mean forbid or hinder? What does free mean?

    1. If the tax were levied on the exact same basis as any comparable organization, no, I don’t think so. Do Masonic lodges pay in taxes? (Looks it up: They don’t.)

      I suppose you could argue about the property taxes: Some states treat churches differently from fraternal organizations, some don’t.

      1. Huh. TILed about 501(c)8s and 501(c)10s.

        It seems like for both fraternal organizations and churches, it might be reasonable to peel apart the “getting everyone together” and the “doing charitable works” part. Agreed that it would make sense to be consistent.

        1. If an organization engages in genuine charitable activity — feeding the hungry, sheltering the homeless, operating a legitimate school — I support tax exemption for that organization’s work.

          If people congregate to be entertained by a speaker or band, that activity should be taxable, regardless of whether the person at the microphone is Bruce Springsteen (who pays his taxes) or a televangelist (who is a freeloader).

          1. There you have it folks. AK proves me right.

            He thinks you worshipping God is the same as going to a concert and listening to any plain jane speaker. Don’t color me surprised at all. This is what he thinks about your religion and for that matter what almost every liberal thinks of your religion as well.

  5. “Equity Aids The Vigilant, Not Those Who Slumber On Their Rights.”

  6. “I am grateful that Diocese, and not South Bay will be the final word on this issue.”

    This Fledgling Clinger has much to learn.

    1. And not just with respect to punctuation.

  7. How do we go about challenging the entire state-declared emergency on the merits (that is, get a court to declare that a virus with a 99.6% survival rate simply does not justify any shutdown orders, and therefore we all get to reopen?) Isn’t every injury supposed to have a remedy at law? If this one doesn’t, there is no rule of law.

    1. Since every state supreme court and federal court of appeals has adopted emergency changes to the way they do business, the prospects of such a lawsuit seem low.

    2. The Wisconsin approach. That legislatures are unconstitutionally delegating their powers to the executive branch ad infinitum.

      In California this may not apply since the legislature can terminate the SOE at any time via a simple CR, but the exec branch has issued orders exceeding what is allowed by statute, in many cases amending state law rather than simply easing regulatory restrictions against existing laws that directly apply to emergency response. There’s an active lawsuit targeting this with a preliminary win in district court.

  8. How can you remand to a court that was never seized of the case? Scotus docket says that the only thing pending at the 9th Circuit was the interlocutory appeal, so cert remand goes to the circuit, which then only has an interlocutory petition arising from a vacated proceeding. Or perhaps I’m missing something. Or everything.

    Mr. D.

Please to post comments