The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Briefing is Complete in Tandon v. Newsom

The Supreme Court can rule any time before April 15. After that date, the regulations will be substantially modified.


Earlier this month, I blogged about Tandon v. Newsom. In this case, a Ninth Circuit upheld California's regulations that prohibit four people, from different households, from assembling in a backyard to study the Bible. On April 2, the worshippers sought an emergency injunction from the Supreme Court. About two hours later, California announced it would modify the challenged regulations, effective April 15.

Circuit Justice Kagan did not drag her feet, and ordered the government to respond by April 8. That response was filed yesterday. California urges the Court to delay ruling till April 15, at which point there would be no need for emergency relief:

In any event, the State recently announced that the challenged policy will be significantly modified on April 15, one week from today. In light of improvements in the rates of infection, hospitalization, and death, as well the growing number of vaccinated individuals, the State will be substantially relaxing its restrictions on multiple household gatherings. Under the new policy, plaintiffs will be able to hold the types of gatherings referenced in their emergency application. See, e.g., Application ii, 18 ("Bible studies, prayer meetings, and worship services at their homes" with "eight to twelve individuals"). There is accordingly no basis and no need for the Court to grant injunctive relief at this time.

And California cites another case in which the Court held onto Danville Christian Academy as a way of punting:

Indeed, this Court recently denied injunctive relief in similar circumstances. In Danville Christian Academy, Inc. v. Beshear, 141 S. Ct. 527, 528 (2020), the Court declined to enjoin an expiring restriction that required the closing of both secular and religious schools in Kentucky (while leaving open the possibility that a party could seek injunctive relief if the State renewed the policy)….  Because the order was set to expire the week of the Court's decision "or shortly thereafter," the Court declined to issue an injunction. Id.; see also Shapiro et al., Supreme Court Practice § 17.13(d)(12), p. 17-45 (11th ed. 2019) (noting cases where the Court has denied injunctive relief in light of a "change in circumstances or an anticipated change in circumstances"). The same result is appropriate here.

The state includes one other possible remedy in a footnote: treat the application as a petition for cert before judgment, then GVR in light of the new policy.

Alternatively, the Court could consider treating plaintiffs' application as a petition for certiorari before judgment, granting the petition, vacating the district court's denial of preliminary injunctive relief, and remanding in light of the State's new policy on gatherings.

The Plaintiffs have now filed their reply brief. They charge the government with Nero-esque behavior:

Whereas a certain Roman emperor would "post his edicts high on the columns so that they would be harder to read and easier to transgress,"1 today's would-be autocrats need only perpetually update opaque websites and, during fast-moving litigation, constantly shift their official understanding of what those websites say.

Indeed, it isn't even clear what the law is:

Consider what has occurred since this Application was filed: (1) the State has proclaimed that the Ninth Circuit's ruling (in its favor) "incorrect[ly]" parsed the gatherings restrictions as applied to political assemblies, meaning that Californians now have no earthly idea what kinds of gatherings are permitted; (2) the State, at least for present purposes, no longer reads its online PDFs to prohibit outdoor religious gatherings at the home, despite its repeatedly taking the opposite position in the lower courts; and

Plus, the state engages in this never-ending game of whac-a-mole:

less than three hours after Applicants asked this Court to immediately enjoin the State from enforcing its three-household limit on their homebased religious gatherings, the State announced on its website that it intended to loosen those restrictions (though, unfortunately for Christians, not in time for Easter, their highest holy day of the year). While Applicants of course welcome any relief they can get, they cannot help but fear that this deep fog of legal uncertainty is merely cover for the State's disparate treatment of religious practice.

The Plaintiffs also charge that the State is trying to frustrate appellate review:

Worse, the State's hastily adopted revisions smack of an effort to avoid this Court's review. So long as this litigation proceeded in the lower courts, where the State is accustomed to winning, the State steadfastly resisted Applicants' request for religious liberty. But as soon as Applicants filed here, the State professed to have a sudden change of heart, contending now that an injunction is unnecessary because the updated guidance will soon provide Applicants all the relief they seek. But as history demonstrates and as the State concedes, the guidance could again be revised at any time. The State need only point to a slight uptick in cases (a "fourth wave") or invoke the threat of "new variants" to justify renewed restrictions, even if there is no genuine threat to public health. Other than its callous disregard for the rights of religious believers, the only consistent feature of the State's year-long response to the pandemic has been its fearmongering. The State's assurance that "at present, there is no reason to think that they will be unable to continue hosting those gatherings going forward" is very cold comfort.

Finally, the plaintiffs urge the Court not to duck the soon-to-expire regulation:

The State does not dispute that Applicants suffer irreparable harm every day that they are prohibited from holding their religious gatherings. Instead, the State argues that the Court should look the other way because Wong and Busch's rights will be violated for only a few more days (if the State is to be believed). But the violation of First Amendment rights for even a short time is irreparable harm, and here there is no guarantee that the State will not immediately reinstate its unconstitutional restrictions. To prevent the State from violating Applicants' constitutional rights one day more, this Court should issue an immediate injunction.

Later, the Plaintiffs cite my blog post, which reviewed the metadata of the Governor's regulation-by-blog post:

California's brief closes with a song that this Court has heard before: "injunctive relief" is no longer "[ ]necessary" here, because—mere hours after this Application was filed—the State fortuitously announced plans to relax the challenged restrictions. Opp. 20–23.7 This familiar coda has not improved with repetition.8

7 See Josh Blackman, About Two Hours After Bible Worship Group Seeks Emergency Injunction, California Relaxes Guidance for April 15—After Easter, of Course, The Volokh Conspiracy (Apr. 2, 2021 11:21 PM), (reviewing metadata of new guidance PDF and concluding that the proposed change "wasn't planned in advance" but rather was drafted "in response to the imminent application").

I also want to draw attention to an amicus brief filed by the Becket Fund for Religious Liberty. The brief responds to some of the academic criticism of the shadow docket. Indeed, the brief directly addresses arguments raised by Professor Steve Vladeck in his writings, and congressional testimony. (Disclosure: I am co-counsel with Becket in a challenge to New York's COVID restrictions).

To hear some people tell it, there is something shady about the Court's emergency docket. Indeed, they've even given it the moniker "shadow docket."2 On this account, the Court's willingness to rule on emergency applications endangers "consistency" and "transparency," thus creating a "fog of uncertainty" about what its rulings mean.3

These are ivory tower objections that partake more of the "heaven of legal concepts" than the actual experience of litigation.4 Every court in the country (except perhaps traffic court) provides for emergency proceedings, because courts have to re-solve time-sensitive and important disputes including, among other things, persistent outrages to the Constitution.

For academics focused solely on the Supreme Court, emergency proceedings may be foreign or seem unsettling because they do not conform to the "ideal" procedure governing a typical merits case. But for practitioners who have to seek temporary restraining orders in district court, or an emergency injunction in a court of appeals, the Supreme Court's emergency procedures are unfamiliar only in their stringency. Indeed, if anything, this Court's emergency process is more transparent than many other courts' procedures.

I am not sure how the Court could have handled the never-ending stream of COVID cases, without the shadow docket. Lower courts were free to enter injunctions and stays of injunctions. But SCOTUS can't supervise those decisions?

Becket explains that California's actions have demanded the need for urgent shadow docket review:

Some academics have looked at the Court's interventions on COVID worship restrictions and complained that the Court is doing too much to protect core constitutional and civil rights. But that gets things exactly backward. The blame for an active emergency docket lies instead squarely with the governments that have repeatedly attempted to suppress worship and the lower courts that have blessed those actions as "neutral." Until they start following this Court's lead—like the vast majority of governments and lower courts already have—the Court should not hesitate to issue emergency relief.

The Court can rule at any moment. In the past, the Court has issued COVID orders late Friday evening. Or the Court could rule tomorrow. A Saturday decision would allow people of faith to worship on Sunday. A Monday ruling would overlap with what will likely be a decision day. Any ruling before Thursday would have some meaning. Afterwards, the regulations would lapse.

My recommendation: if there are five votes to enjoin, issue the order as soon as possible, and say opinions will be issued in due course. If there are not five votes to enjoin, issue the order as soon as possible, and say opinions will be issued in due course. But don't wait till Thursday, and then dismiss the appeal as moot. Such gamesmanship is transparent, and will rewards the government's frustration of appellate review.