SCOTUS GVRs COVID Cases from Colorado and New Jersey

The Kagan-three dissents on the former, not on the latter. The Chief is silent.


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.

NEXT: Heckler's Veto: $1.5 Million Nuisance Verdict Against Abortion Clinic, Chiefly Based on Actions of Protesters and Arsonists

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  1. It is no surprise that the People's Republic of NJ is doing everything possible to suppress religious free exercise.

    What is completely shocking is SCOTUS countenances it. Particularly after stating they could grant relief very quickly if need be.

    This has to end.

  2. This has to end. This "Change the policy right before it hits the SCOTUS" tactic is an abuse of power and the court system.

    1. Huh? In Colorado it doesn't seem like there's any reason to disbelieve what the state said, which is that they took notice of Diocese and modified the policy in response.

      In New Jersey, they haven't changed the policy at all.

      So in neither case does anyone seem to be changing the policy right before it hits SCOTUS.

      1. Colorado changed it....the day before....

        It's not just Colorado. New York has played this game. California, Illinois. Every time, a request to the SCOTUS is made, after thousands to tens of thousands in legal expenses and magically at the last second the law is changed so it could be made moot...only to change back again later.

        1. Day before what?

          Timeline here: Tenth Circuit ruled against High Plains Harvest on November 11th. The Diocese decision came down on November 25th. A week later, the church petitioned the Supreme Court. Four days after that, Colorado change the policy. And then two days after that they filed their response brief.

          It's not like there was a ton of time between Diocese and when Colorado changed the policy. It feels like if they would have changed the policy literally the first business day after Diocese that you'd just be saying they changed the policy the week before and are therefore trying to evade SC review.

    2. Isn't giving the plaintiffs everything they asked for before the court rules exactly what the plaintiffs would want to have happen—particularly since the whole point of this post is that the Supreme Court doesn't act quickly enough to give parties effective relief?

      Is there some reason that you think Colorado is planning on restoring the challenged regulations or something like them going forward? What are the examples you're thinking of in New York, California, and Illinois?

  3. For the months of Sept, Oct & Nov, Colorado, MN both states with high compliance / social distancing / various forms of lockdowns have almost identical trends in infection rates as MT, NE, ND , SD WI & IA all which have much lower compliance with masking, social distancing and no lockdowns or business closures.

    Who woulda thought!

    1. If by "trends" you mean "they both went up", I guess you're onto something.

      However, the magnitude of the increases were substantially different. Importantly, Colorado and Minnesota have ~half the per capita deaths of the Dakotas at this point.

  4. These remands are so stupid.

    Just decide what regulations are acceptable and say it. Everyone knows then and endless litigation is short circuited.

  5. "Come on Dean, don't hold this matter up on your end."

    This is the future of conservative legal academia, expressed at a blog that seems to be about the best movement conservative law professors can muster.

    I am content.

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