The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Tuesday, March 30, the Ninth Circuit upheld California's restrictions on indoor gathering in Tandon v. Newsom. Over the next 48 hours, the Bible Worship group frantically prepared an emergency injunction application to the Supreme Court. On Friday around 6:00 ET, the group filed that application with the Supreme Court. About two hours later, California changed the gathering guidance, effective April 15. This never-ending game of whac-a-mole is such an abject waste of everyone's time.
Does anyone believe this timing is coincidental? The government is, once again, trying to frustrate Supreme Court review. And of course, this change goes into effect after Easter.
Thanks to the PDF's metadata, I can pinpoint the exact minute when the guidance was changed. The document was created at 4:20 PM (PT), and was finalized at 4:56 PM (PT). Once again, the application was filed around 3:00 PM (PT). This change wasn't planned in advance. The government released this policy after the 9th Circuit ruled, and in response to the imminent application.
What happens next? Circuit Justice Kagan has not yet requested a response. I hope she doesn't set the due date after April 15. Giving the state two weeks would potentially moot the case. (Though I think voluntary cessation keeps it alive.) Kagan previously gave California 7 days in Gateway City Church. That number should be maintained. If Kagan gives California till Friday, April 9, to respond, the plaintiffs can file a response by Saturday. A decision on Sunday, April 11, would allow the group to worship on their Sabbath. That relief would be meaningful. And, the Court could rule well before the April 15 changeover. Of course, we saw the Court was willing to sit on the Kentucky petition in order to moot it. And we know that the Chief does not believe in the concept of voluntary cessation. The five-member majority from Roman Catholic Diocese needs to be proactive here. Issue the ruling as soon as possible. If the dissent is not yet ready, say the dissent will come later. Don't let the Court's coward caucus wiggle out of deciding this blatant violation of the First Amendment.
Going forward, there has to be some form of sanctions for government officials who consistently try to frustrate Supreme Court review. Discovery could determine what factors went into changing the policy. I'm sure Rhys Williams, the Senior Advisor on Emergency Preparedness and Management who created this document, would be happy to answer some interrogatories about how and when the government decided to modify this document in response to the stay application.
Update: Circuit Justice Kagan set the deadline for "Thursday, April 8 by 5 p.m. ET." Six days is better than seven.