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.

NEXT: Class #22: Establishment Clause III

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  1. Why is religion the sole successful argument against the lockdown? Religion itself is a scam and a delusion. Rational basis has failed in all other cases.

    Why? Because the lawyer is the stupidest person in the country. And, the stupidest lawyers of all sit on the Supreme Court. Result? Millions dead from the economic downturn around the world. Thousands dead in the states with the tightest lockdowns. Surges in overdoses, murders and suicides, an effect of the economic devastation described in 1887.

    The tech billionaires in this country got unjustly enriched by $1.7 trillion in the biggest fraud heist in history. In China, the billionaires scored $2.2 trillion.

    1. Why is religion the sole successful argument against the lockdown?

      Because it is specifically mentioned in both the Constitution and a major federal statute with state analogues, and because many people, including the current justices of the Supreme Court, believe that protection extends to allow religious people to get exemptions from rules of conduct.

      (If you want to be more cynical, you could also consider that religion is easy to fake. Disabled people also have a statute that grants them exemptions to things (the ADA) but we haven't seen a lot of litigation on exemptions from covid regulations because it's harder to fake a disability.)

      1. That's an incredible take: they are faking their religious conviction so they can loosen the restrictions on churches so they are the same as the restrictions on casinos.

        As an atheist, I assure you I'm just going to go to the casino in the first place for recreation rather than fake it at a church.

        1. "As an atheist, I assure you I’m just going to go to the casino in the first place for recreation rather than fake it at a church."

          It isn't even that -- say you are a runner who believes that running 5+ miles a day is essential to your wellbeing and you do it when it is 95 degrees outside and you do it in a blizzard, it's who you are and what you believe in.

          I do know such people -- and while I think they are *stupid* -- like, ummm, taking a day off is not going to affect your physical fitness and it *is* blowing a full gale right now, with marginal visibility and you *are likely to wind up as a hood ornament -- but this is a free country and to them it is a religion.

          So maybe the state can require them to wear strobe lights on their butts and perhaps strongly suggest that they tell someone where they are going and when they expect to be back, particularly in rural areas -- but tell them that they can't go running?

          It's their "religion" and I'm not going to tell them they can't do it....

    2. Seriously, most people not smart enough to get into law school (non-mail-order variety) get over it eventually.

  2. "Because the lawyer is the stupidest person in the country."
    No, the David Behar is the stupidest person in the country

    1. Fallacy of Irrelevance, Don. Yours is just a stupid statement. Try an argument of fact, of law, of logic, for a change of pace.

      1. DAvid,
        When judging the stupidity of a statement it is hardly irrelevant to note the stupidity of the source.

        1. Don, aren't you a lawyer? No more need be said.

  3. There is a much larger issue -- when you have government by .pdf, you no longer have a written legal code because there is nothing reduced to reduced to writing.

    In other words, there is no proof of what the law actually *was* when the government can change the .pdf at will, to say anything it wants to.

    As the new official copy erases the old, there is no subpoenable document to indicate what the law *was*, nor no due process notification that it has been changed.

    1. Needless to say, the second "reduced to" is redundant. And wasn't there when I proofed this. And I'm not even giving it things it could mistake for HTML commands....


  4. For gosh sakes man, give it a rest. Please, you are self destructing on this issue. Saying the same thing over and over again does not improve your argument. It just makes it boring. I guess these plaintiff and their ilk feel that if you cannot worship in a group you are akin to the devil's spawn and will spend eternity in hell. And if in the process you infect and kill a few people spreading Covid-19, well that's just being a true supporter of faith.

    Maybe Prof. Blackman ought to pay attention to serious violations of conservative principles, like Arkansas's republicans practicing medicine, or Tennessee wanting to make the Bible the state book or all the other stuff conservatives are doing to go against their beliefs like making it a crime to speak critically of the police (a much more serious 1 A problem)

    1. Freedom to practice religion is enshrined in the US and California constitutions. Are you really that obtuse?

      1. Actually I am that obtuse. See I think enshrined in the Constitution is the right of citizens to be free from those who would spread pestilence and death in the name of practicing their religion. This is in the same vein that I would oppose scrificing virgins (of any gender) or allowing children to handle deadly snakes or allowing persons to take illegal drugs because of so-called 'religious freedom'.

        But then truly religious people, as opposed to those who use their religion to make political statement would never do those things anyway.

        1. "See I think enshrined in the Constitution is the right of citizens to be free from those who would spread pestilence and death in the name of practicing their religion."

          I must have missed that section of the Constitution. Can you point it out?

          "allowing persons to take illegal drugs because of so-called ‘religious freedom’."

          Actually we do exactly that.


      2. You must surely be aware that no enshrined rights are absolute. Always limits. It's not a question of obtuseness, it's just about where to draw lines. As usual.

        1. To have people's religious rights restricted as strongly as they have been is several degrees too far.

          If people's right to vote had been limited in a similar manner, there would've been a rebellion.

          1. I'm not sure I agree, but that's at least an arguable position about where the line should be drawn. Simply saying "freedom to practice religion is enshrined..." is not, in my opinion.

            1. It's "enshrined" like the right to vote, the right to free speech, and many other rights are.

              If people's right to vote had been restricted like their right to freedom of religion has been, Trump would've called off the entire 2020 election as "too dangerous"

    2. I guess I'd like to see the peer-reviewed studies showing that worshipping before April 15 is unwarrantably dangerous, but after April 15 is sufficiently safe.

    3. Now do conversion therapy.

      I don't see anything wrong with legislators deciding than one needs to be an adult for irreversible life changing elective surgery. Surgery and hormone therapythat many adults have come to regret.

      1. And as a conservative I see a lot wrong with government trying to make medical decisions that it is neither competent do or allowed to do so by the Constitution. But then I am not the kind of conservatives who checks his principles at the door when the issue of government control is on where he or she wants government control.

        1. Well, then, have the Conservative Central Committee expel me for ideological deviationism if you will, but I don't think such surgeries for minors should be legal.

          1. Ok, the papers expelling you are in the mail.

            Look, if you believe that government, rather than patients, the medical profession, family and other private non-government persons should make medical decisions you are certainly entitled to believe that and to work to make that happen. But supporting this type of intervention by politicians eager to make political points rather than informed, educated medical policy is why we have to expel you.

            And of course there is always the risk that you are living in or visiting in a place like Arkansas and need some controversial medical procedure approved by doctors to save your life and you want to undergo it, only to find that the state government has prohibited it because government knows better than individuals or the private sector, well maybe that changes your position on the role of government in micro-managing health care.

            1. PREMISE #1: The government should permit life-saving health care
              PREMISE #2: ????????????????

              CONCLUSION: It should be legal to medically mutilate a boy who believes himself to be a girl.

              1. No, if that's conservatism let me try the bleeding-heart liberals.

          2. "but I don’t think such surgeries for minors should be legal."

            Circumcision? Far more frequent, no legitimate point to it.

            1. Hardly a surgery of such life consequences as a sex change.

              1. That's your best response? Dismissing millions of circumcisions while becoming hysterical over a few hundred surgeries? That sounds like thinking deriving from superstition rather than reason.

        2. And as a conservative I see a lot wrong with government trying to make medical decisions that it is neither competent do or allowed to do so by the Constitution.

          It's interesting both how "medical decisions" have become the latest attempt at a sacred cow, and how the otherwise supreme catch-all general welfare clause is banished to the corner just for these select circumstances.

          Let me try: 6-year-olds should be able to make the "medical decision" to try to exercise their liver by drinking alcohol. 7-year-olds should be able to make the "medical decision" to try to improve their skin tone with a tattoo. 8-year-olds should be able to make the "medical decision" to try to protect their lungs from COVID by smoking.

          I look forward to hearing your principled distinction between examples like that and a 9-year-old making the "medical decision" to try to improve his mental health by amputating his penis and getting a boob job.

    4. "Saying the same thing over and over again does not improve your argument. It just makes it boring."

      Lighthouses, which merely state that "the ledges are here" are exceedingly boring by your definition -- and yet are exceedingly valuable, particularly in the era before LORANS and GPS. (What the USCG fails to understand is that (a) not everyone has functioning GPS (for a variety of reasons including intoxication) and hence (b) the lighthouses are still valuable today...)

      In a highly turbulent and tumultuous time, someone who remains a consistent point of reference is an incredibly valuable person, particularly to those who disagree with him because he serves as an independent point of reference. A benchmark.

      1. Well I normally love a good analogy but I have to admit near total confusion on the lighthouse thingee.

        I simply want Prof. Blackman, who usually has interesting and informative opinions and analysis, some of which I disagree with but am always wanting to hear, to move on and give us something new. It now seems he is using his position on this Forum to just repeat over and over again his personal outrage, which may mean a lot to him, but fails to educate us any further.

        1. OK -- as a young child, I remember when the captain shut off the boat's engine in the fog and listened for foghorns (each of which was different) to figure out where we were.

          We were considerably south of where he thought we were, and he then restarted the engine and successfully got us to where we wanted to go (and not wrecked on the numerous ledges which we could have died on).

          To someone who has never experienced this -- well, whatever...

          1. OK, which Edward Rowe Snow book is that passage from? I'm stumped.

            1. None -- he was the *flying* Santa, not the "lost in the August fog" Santa...

  5. I am not a Buddhist, or a Muslim, or a Jew, and I would not offer a personal opinion on whether a particular restriction on worship by Buddhists, Muslims, or Jews materially interferes with their religion. If members of those religions experience material interference, that's good enough for me. I am a Christian, and I can assure you that prohibiting me from worshiping with fellow Christians to (for example) celebrate our savior's resurrection does materially interfere with my religious experience.
    Yet I understand that limits on such worship may ("MAY") be required to prevent the spread of disease during a pandemic. But pandemics don't automatically supercede laws, and the law says that religious practices are entitled to the highest protection. For political reasons that I don't understand (but I guess that money is involved some how), some State governments have decided to put more stringent restrictions on religious activity than on many secular activities which present comparable public health risks. They aren't supposed to be allowed to do that. So they should stop doing so; they should stop playing games.
    And the Supreme Court should say so.

    1. It's a bit meaningless to debate the topic on such general terms, I think. The word "Comparable" is doing a lot of work there. Specific activities are being restricted for specific reasons. Many people here seem to think it's just a bad faith attack on religion, but it's pretty common here to attribute bad motives to those with which one disagrees.

  6. "My recommendation: if there are five votes to enjoin, issue the order as soon as possible . . . "

    The Sage Of South Texas, offering pointers to the Supreme Court . . . which Chief Justice Roberts (and anyone who respects former Justice Kennedy) must be particularly grateful to receive.

    1. A kid in Life Skills Class learning to eat with a spoon should advise the stupidest people in the country, the Justices of the Supreme Court. If they listened, there would be an immediate upgrade in the quality of the decisions and in the clarity of the writing.

      1. When judging the stupidity of a statement, it is hardly irrelevant to note the stupidity of the source.

  7. When young people think about religion these days, it is mainly in the context of

    (1) people asking for special privilege to be bigots (stale-thinking gay-bashers, mostly);

    (2) people asking for special privilege to avoid providing adequate health care coverage to employees; and

    (3) people asking for special privilege to flout a pandemic.

    The predictable consequence of this development involves freefalling church membership and attendance.

    1. "special privilege to flout a pandemic"

      If any point can be considered established by a series of judicial decisions, it is that many state and local governments have discriminated against religious activities in rules supposedly aimed at promoting the public health.

      (It would be subversive to suggest that so many courts could be wrong!)

    2. "(1) people asking for special privilege to be bigots (stale-thinking gay-bashers, mostly)"

      No, in fact, they don't believe *anyone* should be forced to provide baking, catering services, etc. for SSM ceremonies.

      "(2) people asking for special privilege to avoid providing adequate health care coverage to employees"

      I suppose you mean the Little Sisters of the Poor insisting that their employees pay for birth control out of their salaries? Yeah, the kid of people who are put off by *that* would make great recruits for religion.

      If only the churches watered down their witness to accommodate you and the soyboys, they would win more respect!

      1. You don’t need a special exception to be a gay basher as long as that is figuratively not literally

        It’s already legal. It’s called 1A

  8. Amazing that it’s 5-4

    I’m absolutely for freedom of religion. But it worries me is that it seems that is are only protected freedom and then by only a 5-4 margin

    As the never ending “emergency “ suspension of the constitution continues

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