The Volokh Conspiracy
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Justice Barrett's First Opinion as a Justice
The newest justice makes her debut in a brief concurrence on the shadow docket.
Last night, a divided the Supreme Court enjoined the enforcement of California's prohibition on indoor worship services due to Covid-19 in South Bay United Pentecostal Church v. Newsom. The Court effectively split 3-3-3. Three justices would have denied all relief (Kagan, Sotomayor, and Breyer), and three justices (Gorsuch, Thomas, and Alito, albeit to a slightly lesser degree) would have gone farther and enjoined additional portions of California's Covid restrictions on houses of worship. The Court's grant of partial relief pending the petition for certiorari was endorsed by the three remaining justices (Roberts, Barrett, and Kavanaugh).
My co-blogger Josh Blackman has a compete rundown of the opinions below. Among the opinions was Justice Amy Coney Barrett's Supreme Court debut. She authored a short opinion concurring in the partial grant of application for injunctive relief, joined by Justice Kavanaugh. This was her first signed opinion since joining the Court last fall.
It is very brief, so here it is:
I agree with JUSTICE GORSUCH's statement, save its contention that the Court should enjoin California's prohibition on singing and chanting during indoor services. The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record. As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue. As the order notes, however, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.
It is common for a justice's first majority opinion to involve a relatively minor matter. The junior-most justice is not going to get her choice of cases, and Chiefs often assign relatively sleepy and non-contentious matters for a new justice's debut. Yet new justices can still write separately, and Justice Barrett chose to do so here, in a case off the Court's shadow docket, before writing her first majority. This may be unusual, but it's hardly unprecedented.
Fun fact: Chief Justice Roberts' first opinion as a judge on the U.S. Court of Appeals for the D.C. Circuit was an opinion dissenting from a denial of rehearing en banc.
