The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Since the onset of the COVID-19 pandemic, the Supreme Court has made major jurisprudential shifts on the shadow docket. Initially, South Bay became a super precedent. And more recently, Diocese established the new Free Exercise framework for lockdown cases. All of these moves were made in unargued, unsigned per curiam opinions. Indeed, it was never clear if these sorts of emergency orders should even be precedential.
During this period, the lower courts have also made major jurisprudential shifts through unargued, unsigned per curiam opinions. Each court of appeals has its own shadow docket. And this shadow docket operates in a similar fashion to the Supreme Court's shadow docket. The circuit courts can grant stays or grant injunctions on an expedited basis. In the process, these shadow docket decisions can set new circuit precedents.
A recent decision from the Sixth Circuit shines a light on this facet of the appellate shadow docket. On December 17, the Supreme Court ruled against the Danville Christian Academy in Kentucky. The Court punted, finding that the order would soon expire. Though, that shadow docket order went out of its way to state that the Danville Christian Academy did not raise a hybrid rights claim under Smith.
Another Kentucky case, however, squarely raised the hybrid claim. The Pleasant View Baptist Church argued:
The Governor conflates the nature of a hybrid claim at page 11 of his response, claiming that the right to private education merely collapses into a Free Exercise claim. Again, the Supreme Court did not see it that way yesterday in Danville, 20A96, and the observations of the Court suggest that the outcome would have been different, had the hybrid claims been raised as they have been here.
Thus, where the Free Exercise Claim involves religious education and the right of parents to direct that in person education, strict scrutiny is triggered. Smith, 494 U.S. 872 at 881, citing Pierce v. Society of Sisters, 268 U. S. 510 (1925); Wisconsin v. Yoder, 406 U. S. 205 (1972). See, also, Ohio Ass'n of Indep. Sch. v. Goff, 92 F.3d 419, 423 (6th Cir. 1996); Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927, 931 (6th Cir. 1991).
On December 21, a three judge panel (McKeague, Donald, and Readler) rejected the Church's position. An unsigned order denied a stay on equitable grounds, citing the Supreme Court's Danville decision:
With respect to the challenges to the first prohibition, the Supreme Court's recent order in Danville Christian Academy v. Beshear, concerning a free-exercise challenge to the same executive order, likewise resolves the emergency request in this case. See No. 20A96, slip op. (Dec. 17, 2020). The Supreme Court in Danville declined to address the likelihood that the petitioners would prevail on the merits of their free exercise claims. Observing that the executive order effectively expires "this week or shortly thereafter," the Supreme Court instead concluded that equitable relief was unwarranted given the limited impact that would result from staying the order. Id. at 1–2; see also id. (Alito, J., dissenting) (describing the Court as "reluctant to grant relief that, at this point, would have little practical effect"). To the extent plaintiffs' claims mirror those in Danville, we are compelled to reach the same conclusion as has the Supreme Court.
I still think the Supreme Court's punt was in error, but the Circuit Court was correct to follow the Justices's lead.
The panel did note that the Pleasant View Church raised the hybrid theory that was not present in Danville:
Plaintiffs' challenge to Executive Order 2020-969, we note, does raise additional claims beyond the free exercise claims at issue in Danville. But as the Supreme Court's order did not rest on the substantive claims at issue, and instead on the equities of enjoining the enforcement of a soon-to-be expired order, there is no basis in this emergency setting to distinguish Danville from today's case. Especially so, it seems, when our consideration of the stay requests comes even later in the day than in Danville. As the Supreme Court observed in Danville, a future challenge to a similar order could raise significant questions under the Free Exercise Clause or in conjunction with other constitutional rights. Plaintiffs can raise those claims if and when that eventuality occurs. See Danville, slip op. at 1–2; see also id. at 2–3 (Gorsuch, J., dissenting).
The Sixth Circuit was very careful to say that Danville "did not rest on the substantive claims at issue." The Supreme Court's order was very, very cagey. I don't think the unsigned opinion turned entirely on equitable factors, but the Court was silent about what other "circumstances" were considered. The order stated:
Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.
In any event, I think the Sixth Circuit was right not to consider the merits, in light of the Supreme Court's equitable ruling. And it is unlikely that Governor Beshear will reimpose these restrictions. Thus, the hybrid rights theory will have to be resolved another day. Perhaps in Fulton.
Judge Donald wrote a four page concurrence. Part I contends that Justice Scalia's "hybrid rights" analysis from Smith was dicta. She cited a 1993 Sixth Circuit opinion which reached this conclusion. Without googling, I guessed that either Judge Martin or Judge Merritt wrote the opinion. Who else would dismiss a Scalia opinion as dicta? (Spoken like a true Boggs clerk.) It was Judge Martin. My general sense is that circuit precedent, to the extent that it exists, does not survive a judge's death. After a judge leaves a court, he or she is no longer there to fight for the precedent's vitality at the en banc conference. Other junior judges may not care enough to step up to defend it. And so the world turns. In any event, I am confident Martin was wrong. Judge Donald cites three other circuits that have followed Martin's lead. I take it that eight circuits have not read Scalia's hybrid analysis as "dicta." And the Supreme Court will likely clarify that point in Fulton.
Part II of the concurrence was far more significant. Judge Donald expressed concern about her court was making important rulings on the "emergency docket"--what I would call the "appellate shadow docket."
I provide the foregoing analysis regarding Smith not to weigh in on the merits of Christian School Plaintiffs' claims, but rather to highlight what I see as a troubling trend in the use of the Court's emergency docket.
While the courts are never foreclosed from entertaining novel arguments—indeed, the rugged individualism and creative advocacy of litigants and attorneys are necessary ingredients of our common law system—I do not see an emergency appeal as the proper forum to advocate for abrupt and sweeping change to well-settled federal law.
This comment may be directed at two prior Sixth Circuit shadow docket cases that I have praised: Roberts v. Neace and Maryville Baptist Church v. Beshear. Both of these cases (which I suspect soon-to-be-Chief-Judge Sutton wrote) strictly scrutinized lockdown measures during the early days of the COVID-19 pandemic. In the run-up to South Bay, other courts favorably cited these Sixth Circuit shadow docket cases. Alas, the Chief Justice set the super-precedent, and the rest is history.
Judge Donald does not think that courts should make major constitutional rulings in the absence of the full litigation process:
Our federal court system is the envy of the jurisprudential world, to which people look for justice and consistency. But more fundamentally, we are problem solvers who provide punctual and clear resolution to complex problems. However, the reliability of this great institution is severely undermined when emergency cases are used as vehicles to advance normative arguments that are not grounded in clearly delineated and well-formulated precedent. The expedient decision-making that is required under our emergency jurisdiction allows us to provide immediate resolution to factually unique circumstances, often buttressed by the exigencies of the narrow time period in which the emergency is occurring. When resolving such cases, we do not have the time or resources for the careful deliberation that we would normally undertake in a traditional merits case. Consequentially, our decisions on emergency appeals are often quite narrow and limited to the facts of the particular appeal.
I say this all not to suggest that any constitutional rights are less important during crises than during normal times, but rather only to emphasize that emergency litigation is an inappropriate setting to attack settled precedent and advocate for comprehensive changes to the law.
I agree, in part. Generally, when courts rush, they make mistakes. Shadow dockets decisions should be as narrow as possible. But when a case of first impression arises on the shadow docket involving the Free Exercise of Religion, the courts cannot default to a Jacobsonian presumption of constitutionality. The lower courts, by their best lights, must make a tough judgment call. Ultimately, the Supreme Court can use its own shadow docket to correct any errors. Plus, at this point, we are nearly a year into this pandemic. The issues have been fully vetted.
I am grateful that Judge Donald shined a light on this facet of the appellate shadow docket.