The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier this week, I blogged about California's decision to lift the regional orders shutting down indoor worship. Now both South Bay and Harvest Rock churches are back to the Supreme Court. Both cases are fully briefed. I had anticipated that California would argue that the dispute were moot, in the never-ending game of Whack-a-Mole. I was wrong. California concedes that the restrictions are still in effect.
The very end of California's opposition brief is something of a proffer to the Court--if you rule against us, please leave the percentage restrictions in place.
Should this Court disagree, however, it would be critical for it to tailor any injunction and preserve some latitude for state public health officials to limit the number of people attending large and communal gatherings indoors, in order to mitigate the virus's spread. Cf. Roman Catholic Diocese, 141 S.Ct. at 68 ("[W]e should respect the judgment of those with special expertise and responsibility in this area."). The court of appeals has already enjoined the numerical capacity limitations in Tiers 2 and 3, South Bay App. A 47-49, and this Court has recognized that, even with those caps, the limitations in Tiers 2 through 4 are "far" less restrictive than the New York restrictions that were enjoined in Roman Catholic Diocese, 141 S.Ct. at 67 & n.2.57 While the State firmly believes that the Tier 1 restrictions are constitutional and critical to preventing excessive spread of the virus, if the Court were to enjoin those restrictions, it should leave the percentage capacity restrictions in Tiers 2 through 4 in effect, and specify that the State may impose the Tier 2 percentage capacity limitations on counties in Tier 1. Cf. Roman Catholic Diocese, 141 S. Ct. at 68 (leaving in place proportional capacity limitation). It would also be critical to allow the State to continue imposing requirements such as "social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services." Id. at. 69 (Gorsuch, J., concurring).
Given this posture, Chief Justice Roberts will have an opportunity to rule on a case that is not moot. Justice Breyer will be in a tough spot, as he was sympathetic to the arguments presented in Diocese of Brooklyn. Where will Justice Kagan go?
I also commend the Becket Fund for flagging Governor Newsom's "bait-and-switch":
California officials told reporters by at least the morning of January 22— well before the Ninth Circuit panel issued its decision—that it had ICU data it was not sharing with the public, again because it would "mislead." Don Thompson, "It's a secret: California keeps key virus data from public," ABC News (Jan. 22, 2021), available at https://perma.cc/XYN5-3QRB. After receiving sharp criticism from academic epidemiologists—including from Dr. George Rutherford, one of California's own declarants in the Harvest Rock case—California officials decided over the weekend to release the data. Ibid. As it happened, that data showed a massive improvement in California's ICU capacity, including in Southern California. Yet for some reason, California did not share this information with the South Bay panel, which had been led to believe that the ICU capacity metric was far worse than it actually was. By Monday, California wasn't even taking ICU capacity into account in determining what activities would or would not be allowed. See State of California, Blueprint for a Safer Economy, https://perma.cc/DTL6-H79S ("Every county in California is assigned to a tier based on its test positivity and adjusted case rate."). In situations of information asymmetry, courts can be tempted to defer completely to the assertions of government officials. But where core First Amendment rights are at stake—and where no other state in a similar situation has imposed the "draconian" measures California has—courts must be willing to look behind the curtain. Harvest Rock Church, 2021 WL 235640 at *1, *3 (O'Scannlain, J., concurring). Cf. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500–501 (1984) (appellate courts have duty of independent review in First Amendment cases). California's deliberate withholding of information is another reason it cannot meet its burdens of proof and persuasion on strict scrutiny.
We should get a ruling in the next week or two.