The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, the Supreme Court issued summary orders in two COVID-19 cases.
The first case, High Plains Harvest Church v. Polis, arose from Colorado. After Diocese, a church sought an injunction to block the Governor's restrictions on houses of worship. The day before the state's reply was due, the Governor changed his policy. Now, all numerical caps on houses of worship were lifted. The state explained:
Colorado has amended the public health order at issue—removing all numeric capacity limitations from all houses of worship. This is not a case in which Colorado has kept the existing framework in place but, using discretion or other criteria, claimed that at this point, it will not enforce the rules against a particular party. Rather, Colorado has removed the only challenged restriction—capacity caps—across the board from all houses of worship. There is no reasonable expectation that High Plains would be subject to capacity limits again, because the capacity limits no longer exist. Thus, there is no longer a present, live controversy between the parties.
The briefing in that case concluded on December 11. Today, the Court GVR'd the District Court decision in light of Diocese:
The August 10 order of the United States District Court for the District of Colorado is vacated, and the case is remanded to the United States Court of Appeals for the Tenth 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).
The Court had ordered the same relief in Harvest Rock.
Justice Kagan dissented, joined by Justices Breyer and Sotomayor. They found that the controversy was moot, and thus no relief was warranted:
I respectfully dissent because this case is moot. High Plains Harvest Church has sought to enjoin Colorado's capacity limits on worship services. But Colorado has lifted all those limits. The State has explained that it took that action in response to this Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020). See Brief in Opposition 15. Absent our issuing different guidance, there is no reason to think Colorado will reverse course—and so no reason to think Harvest Church will again face capacity limits. When "subsequent events" thus show that a challenged action cannot "reasonably be expected to recur," a case is well and truly over. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks omitted).
At least five Justices voted to GVR High Plains. Presumably the same five in the Diocese majority. Chief Justice Roberts did not note his agreement, or disagreement with the Court. Of course, Roberts's failure to note a dissent from a per curiam decision does not establish that he joined the majority. Maybe the Chief now views Diocese in the same light as Whole Woman's Health--he dissented from the decision but treats it as precedent for purposes of stare decisis. In any event, the Chief has now resigned himself…to follow Diocese.
The second case, Robinson v. Murphy, arose from New Jersey. An application for an injunction was filed on November 25, the same day Diocese was decided. Briefing concluded on December 3. Unlike Colorado, New Jersey did not modify its policies in light of Diocese. Twelve days later, the Court has now GVR'd the lower court decision. Here, there were no recorded dissents.
The application for injunctive relief, presented to Justice Alito and by him referred to the Court, is treated as a petition for a writ of certiorari before judgment, and the petition is granted. The October 2 order of the United States District Court for the District of New Jersey is vacated, and the case is remanded to the United States Court of Appeals for the Third 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).
No injunction is now in place, so New Jersey can continue to enforce its policies for the foreseeable future. Again, this application was pending for more than three weeks. Chief Justice Roberts and Justice Breyer are simply wrong that immediate relief can be obtained. The Court moves at a glacial pace.
Speaking of glacial paces, Harvest Rock filed a renewed emergency application on December 9. Six days later, Circuit Justice Kagan still has not even called for a response. Come on Dean, don't hold this matter up on your end. Let the parties at least brief the issue so the Court can timely consider the application.