The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On February 12, a Ninth Circuit panel upheld Santa Clara's prohibition on indoor worship. How could that opinion possibly be squared with South Bay II? It can't.
On February 17, a church in Santa Clara sought an injunction from the Supreme Court. On February 24, the County filed a reply. And on February 25, the County informed the Court that the restrictions would be lifted on March 3. The County needs to learn to play whac-a-mole. You repeal the policy before the reply brief is due.
In any event, the Court did not wait. Friday, February 26, the Court enjoined the Santa Clara policy:
The application for injunctive relief presented to Justice Kagan and by her referred to the Court is granted pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. The Ninth Circuit's failure to grant relief was erroneous. This outcome is clearly dictated by this Court's decision in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021). Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
"Clearly dictated." I don't remember such direct language in a shadow docket order. I'm sure the Justices were annoyed that Judges Canby, Graber, and Friedland wasted everyone's time.
Justice Kagan, joined by Justices Breyer and Sotomayor, dissented for the reasons set out in Kagan's South Bay II dissent.
The County should pay fees here. Enforcing their policy after South Bay II was a very poor decision.