The Volokh Conspiracy

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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.