Breaking: SCOTUS Grants Injunction in Tandon v. Newsom

"The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous."

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On Friday around 3:00 PM ET, the briefing concluded in Tandon v. Newsom. About nine hours later, the Supreme Court granted the injunction. The Court split 5-4. There was a four-page per curiam opinion. Chief Justice Roberts would have denied the injunction, though he did not explain why. Justice Kagan wrote a two page dissent, which was joined by Justices Breyer and Sotomayor.

The per curiam opinion begins:

The Ninth Circuit's failure to grant an injunction pending appeal was erroneous. This Court's decisions have made the following points clear.

This decision was not even a close call under prior orders from the shadow docket. Note that the Court didn't say the Court's "precedents." Only "decisions." The majority opinion identified relevant four principles.

First, the Court clarified the appropriate comparator approach. And most importantly, the Court formally embraces Justice Kavanaugh's approach.

First, government regulations are not neutral and gener-ally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any compa-rable secular activity more favorably than religious exer-cise. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___, ___–___ (2020) (per curiam) (slip op., at 3–4). It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less fa-vorably than the religious exercise at issue. Id., at ___–___ (KAVANAUGH, J., concurring) (slip op., at 2–3).

To date, the Court has been somewhat cagey about how to define neutrality. Justice Kavanaugh was the only member of the Court who tried to answer this question. Now, the Kavanaugh framework is the Court's framework. We have come full circle since Calvary Chapel.

The Court explained that California ran afoul of this first principle:

First, California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and con-certs, and indoor restaurants to bring together more than three households at a time.

The most important word in that sentence is "some." Or a synonym, "any." If some or any comparable businesses are treated "more favorably," than the restriction on the house of worship is not neutral.

Second, the Court clarifies that the reason why people gather is irrelevant. What matters is what risk various activities pose. Here, the Court formally embraces Justice Gorsuch's framework.

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue. Id., at ___ (per curiam) (slip op., at 3) (describing secular activities treated more favorably than religious worship that either "have contributed to the spread of COVID–19" or "could" have presented similar risks). Comparability is concerned with the risks various activities pose, not the reasons why people gather. Id., at ___ (GORSUCH, J., concurring) (slip op., at 2).

The Ninth Circuit failed to property apply the comparator approach.

Second, the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than applicants' proposed religious exercise at home. The Ninth Circuit erroneously rejected these comparators simply because this Court's previous decisions involved public buildings as opposed to private buildings. 

Third, the government bears the burden, and not the house of worship. And the government must apply something of a least-restrictive means test.

Third, the government has the burden to establish that the challenged law satisfies strict scrutiny. To do so in this context, it must do more than assert that certain risk fac-tors "are always present in worship, or always absent from the other secular activities" the government may allow. South Bay United Pentecostal Church v. Newsom, 592 U. S. ___, ___ (2021) (statement of GORSUCH, J.) (slip op., at 2); id., at ___ (BARRETT, J., concurring) (slip op., at 1). Instead, narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID.

This element of this decision may make a comeback in Fulton. And the government has to show that other permitted activities are not more dangerous. Again, this analysis comes from Justice Gorsuch's concurrence:

Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too. Roman Catholic Diocese, 592 U. S., at ___–___ (slip op., at 4–5); South Bay, 592 U. S., at ___ (statement of GORSUCH, J.) (slip op., at 3).

Here, the Court formally embraces Judge Sutton's opinion for the Sixth Circuit in Roberts v. Neace. This opinion predated South Bay, and is largely consistent with Justice Kavanaugh's Calvary Chapel dissent:

Third, instead of requiring the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities, the Ninth Circuit erroneously declared that such measures might not "translate readily" to the home. Id., at *8. The State cannot "assume the worst when people go to worship but assume the best when people go to work." Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam).

The Ninth Circuit, like California, put additional burdens on people of faith.

Fourth, the parties are entitled to relief so long as the case is not moot.

Fourth, even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case. And so long as a case is not moot, litigants otherwise entitled to emergency injunctive relief remain entitled to such relief where the applicants "remain under a constant threat" that government officials will use their power to reinstate the challenged restrictions.

Here, the Court embraces Justice Gorusch's concerns about "moving the goalposts." In other words, no whac-a-mole.

And fourth, although Califor-nia officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of "moving the goalposts" retain authority to reinstate those heightened restrictions at any time. South Bay, 592 U. S., at ___ (statement of GORSUCH, J.) (slip op., at 6). 

The Court concludes that "[t]hese [four] principles dictated the outcome in this case." "Dictated" is a very strong choice of words. The Ninth Circuits really messed up here. With good reason, I didn't bother spending time to describe it.

The Court piles on. It has now rejected California's plans on five occasions:

This is the fifth time the Court has summarily rejected the Ninth Circuit's analysis of California's COVID re-strictions on religious exercise. See Harvest Rock Church v. Newsom, 592 U. S. ___ (2020); South Bay, 592 U. S. ___; Gish v. Newsom, 592 U. S. ___ (2021); Gateway City, 592 U. S. ___. It is unsurprising that such litigants are entitled to relief.

And the Court reaffirm that strict scrutiny is warranted. The Ninth Circuit should get the memo: no more rational basis test.

California's Blueprint System contains myriad ex-ceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And his-torically, strict scrutiny requires the State to further "inter-ests of the highest order" by means "narrowly tailored in pursuit of those interests." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (internal quota-tion marks omitted). That standard "is not watered down"; it "really means what it says." Ibid. (quotation altered).

The Chief Justice dissents, without any explanation:

THE CHIEF JUSTICE would deny the application.

Why did the Chief dissent? Probably because he could not force his five colleagues to wait till April 15 when the order expired. Indeed, he couldn't even get his colleagues to wait 24 hours. Last term Roberts was in charge. Now he has no sway. At this point, I think the odds of Roberts retiring are greater than of Breyer retiring.

I don't recall the Supreme Court acting so quickly on an application for an injunction. Usually days elapse after briefing concluded. But here, it is obvious that the opinions were prepared well before the briefing concluded. The Court hewed towards my favored approach: move quickly, and resolve the issues with clarity. Good for Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. If the Plaintiffs are entitled to relief, they should be given relief. No more games with the shadow docket timing.

Justice Kagan wrote a two-page dissent, joined by Justices Breyer and Sotomayor. She adheres to her South Bay II dissent.

I would deny the application largely for the reasons stated in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021) (KAGAN, J., dissenting).

She then explains her comparator approach:

The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Some-times finding the right secular analogue may raise hard questions. But not today. California limits religious gath-erings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike.

Kagan then attacks the majority's reliance on shadow docket signals:

California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here. As the per curiam's reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and wa-termelons. 

Truly, the Court has now embraced Justice Kavanaugh and Gorsuch's separate writings. And Justice Kagan is not happy.

Justice Kagan also defended the lower court opinion. And she mentioned the names of the two judges who signed the order: Judges Milan Smith and Bade. Why? It is unusual to name judges in the majority. Usually you only refer to a judge who concurs or dissents. Why did Justice Kagan feel the need to drop names? I've been harsh on these two. At least they got some recognition from the Kagan-three.

At this point, I think we're done with COVID-19 cases. Lower courts are now on notice.

NEXT: A Closer Who Look At Who Made The Cut For the SCOTUS Commission, and Who Didn't

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  1. “I don’t recall the Supreme Court acting so quickly on an application for an injunction. Usually days elapse after briefing concluded. But here, it is obvious that the opinions were prepared well before the briefing concluded.”

    I’d like to see the SC just start automatically enjoining every single 9th Circus pro-government Covid ruling. No briefing, no delay. Just a simple statement:

    Until you start consistently ruling according to our rulings, you’re enjoined.

    1. Judicial review could have saved this country, and stopped these mass murdering lockdowns, killing thousands, destroying the economy, and helping China attack us. Instead, you lawyer skunks sided with the tech billionaires. You utterly failed again. Now you throw an ort to a quack scam delusion, you filthy, traitor scumbags.

    2. Maybe also the 6th, 3rd, and 2nd when it comes to other enumerated rights.

    3. I think the 9th circuit merely sees religion as a not very important activity that should take a backseat to the governments more urgent concerns. It’s not an open hostility to religion that motivates their decisions, it’s just that the government should always be presumed as right, except when people of color are alleging violations.

      The Newsome Adminstration however sees devout churchgoers as ignorant and superstitious. And if they are ignorant and superstitious about religion how can they be expected to “follow the science” about covid. Much the same attitude as Cuomo towards the Orthodox Jewish congregations in NY, without the Anti-semetism.

      1. To me, it is even more basic. Political leaders like Newsome simply want control. Control to determine your behavior, control to direct your life, control to dictate your thinking. Religion upends that control, and leaves control firmly with the individual.

        That is why CA (and the Peoples Republic of NJ) keep doing this.

  2. ‘Here, the Court embraces Justice Gorusch’s concerns about “moving the goalposts.” In other words, no whac-a-mole.’

    If I had to guess, I think this is a large part why Roberts disagreed.

    He is, after all, the guy who let NYC change their rules after their gun law was appealed to the SC, and the SC accepted it.

    I don’t know why he wants to let local and State governments game the Constitution, but he does.

    I’m glad he lost on that

    1. Because he’s so obsessed with appearing “impartial” and “following norms” that he doesn’t realize that he’s essentially picking sides by doing that.

      1. Damn those impartial, norm-following judges!

        1. For a long time, “separate but equal” was the norm. It was still wrong, and “just following orders/norms/lemmings” is a terrible defense.

          1. As a point of inductive logic, what’s better overall, in the long run, judges who take no heed of long established judges or ones that do?

            What’s truly funny is in theory I’m the left leaning guy trying to lecture you about the importance of long established norms and you’re the right leaning guy going ‘fuck that, let the heavens fall!’

            1. The “long established ‘norm'” is that left wing political hacks masquerading as judges trample over the US Constitution, the rule of law, and democracy to illegitimately force their personal political desires on the rest of us. See Roe v. Wade for an obvious example.

              Yes, that needs to be burned to the ground.

              Part of being a decent human being is understand that that behavior, like slavery, may be the norm, but it’s evil, and must be stopped

              1. There’s a story conservatives used to tell about a reformer coming across a fence you might want to look up…

                1. I’m aware of why the fence is there

                  That’s why I want to burn it down

                  See, not being a leftist, I’m not a idiot. I actually do stop, think, understand, and then act.

                  And, being a decent human being (not a leftist), I don’t have to lie abotu what I’m doing, or why I’m doing it. It makes the logic part much easier

              2. The wanking is strong with this one.

        2. I like ACTUAL impartial, norm following judges who consider themselves bound by the US Constitution, then the rule of law, then democracy, in that order.

          I strongly dislike judges who pretend to be impartial and norm bound, while not actually being so.

          Roberts falls into the second ground, which is why we’re damning him.

          Were you too stupid to figure that out? Or just too dishonest to care?

          1. Roberts is hated precisely because the most impartial and partisan of those on the Right have been disappointed that he sometimes doesn’t vote the way they’d like (impartially and partisanly).

            1. Roberts is hated because he’s a dishonest hack who bends to left wing political pressure.

              See “ObamaCare is a tax”, so Consitutional.

              You can’t be “impartial and honest”, and vote with the Left. Because “the Constitution is a living document” requires partial, dishonest, political advocacy by the “judges”, and that’s the core of every pro-Left decision

  3. In one post, Josh praises appellate judges that claim they are not bound by precedent. In another post, he chides appellate judges for not properly applying precedent.

    Next time a judge on the 9th Circuit decides not to “extend” the COVID case law, they should just cite Judge Bumatay’s “powerful dissents.”

    1. oh, snap! boxcat has caught the blackman kid in an apparent inconsistency (or near inconsistency). meeooow!

    2. “In one post, Josh praises appellate judges that claim they are not bound by precedent.”

      Can you give us a link or quote?

      Because all I recall is him praising appellate judge who refuse to extend precedent that’s contrary to the Constitution. That means they won’t extrapolate it beyond where it has already gone, not that they won’t obey it.

      1. What’s the distinction between application vs extension?

        Analogies range from weak to strong, even the most on point prior case is rarely exact to any instant case or other. https://plato.stanford.edu/entries/legal-reas-prec/

        The appellate judge can claim that the instant case is one of first impression, but application can always be avoided this way. Just say it would require extension and extrapolation.

        1. See unqualified immunity for an example of that distinction.

          When a judge genuinely thinks the Supreme court is commanding something contrary to the Constitution, the judge must allow himself to be dragged, kicking and screaming, as far as the Supreme court decides to drag him, but should take not even one step further on his own initiative.

          He may be a judge of an inferior court, but he does have his own oath to the Constitution, after all.

    1. Let’s apply that to all of the gun laws, like California’s ridiculous magazine ban which has been “stayed” for years now.

      But of course, when a gay “couple” wanted to “marry,” those cases were expedited because “justice delayed is justice denied1”

      1. Anyone who hates gays supports gay marriage. Gays are rich and smart. Almost none is falling for this obvious lawyer trap.

        1. Behar’s comments usually easily fall into two categories, incoherent or wrong. This one is the latter.

          https://www.nbcnews.com/feature/nbc-out/nearly-1-million-u-s-households-composed-same-sex-couples-n1240340

          1. Thanks, Queenie. First, NBCnews? Fake poll. Garbage.

            Second, the homosexuals claim 10% of people are gay. That is ridiculous. It is closer to 1%. Say 5% are sort of gay. That is 10 million adults. Your fake poll is saying 600000 of them are married. That is 6% of gays, from a fake, biased, leftist garbage poll.

            Here, from the Census: According to estimates from the 2019 Current Population Survey Annual Social and Economic Supplement (CPS ASEC), there are 543,000 same-sex married couple households and 469,000 households with same-sex unmarried partners living together. This compares to 61.4 million opposite-sex married and 8 million opposite-sex unmarried partner households. In addition, 191,000 children live with same-sex parents.

            This shows a marriage rate 1/10 that of hets. Of course, the 191000 children living in these lifestyles are in danger.

            Homosexuals are smart and rich. They are not falling for this lawyer trap. Homosexual marriage was not a homosexual idea. It was a Family Law idea, because the business has been destroyed by the all out lawyer attack on the American patriarchal family. That is the only viable family in existence, if child welfare, rather than selfish interests, is the priority. That is close to being eradicated by the lawyer profession attacks on it, from all sides. The lawyer profession is the most toxic damaging occupation in our nation. It must be crushed to save our nation.

            1. “Gays are rich and smart. Almost none is falling for this obvious lawyer trap.”

              “According to estimates from the 2019 Current Population Survey Annual Social and Economic Supplement (CPS ASEC), there are 543,000 same-sex married couple households and 469,000 households with same-sex unmarried partners living together. ”

              Almost none=majority to a raving lunatic.

  4. Any thoughts on why the Court has not gutted the Necessary and Proper Clause by its insistence on over-particularized application of strict scrutiny? The ruling here seems to be that the state is not permitted any policy at all, based on any standards at all, except those the Court prescribes case by case. And it makes the Court the arbiter of necessity, instead of the legislature.

    Can anyone explain how under this decision a state continues to have practical access to emergency powers to combat a public health emergency? I suppose the only way to do it would be to shut down absolutely everything, to assure like treatment among all. Which will never prove practical.

    This case emits a stink of religious zealotry—although perhaps a more discerning nose could distinguish overtones of partisan hackery.

    The stakes on court enlargement just went up sharply. Probably Roberts wouldn’t go along because he isn’t a zealot, and he understood that.

    1. “Any thoughts on why the Court has not gutted the Necessary and Proper Clause by its insistence on over-particularized application of strict scrutiny?”

      The N&P clause is in the federal Constitution, and this is in regards to a state action? Has anybody ever suggested that the N&P clause has been incorporated against the states?

      Mind, the N&P clause, properly understood, is a restriction, not a grant of power: It doesn’t permit ALL laws that exercise enumerated powers, only those that are both necessary and proper.

      “This case emits a stink of religious zealotry”

      Where all this means is not adopting the most limited possible understanding of the free exercise clause, but instead treating it as a real, substantial right.

      1. There is a stink of religious zealotry in this case, but it isn’t the SC defending the first amendment. Rather the unconstitutional arrogance that it’s just a lifestyle choice to be given short shrift.

        And, I might add, religious zealotry is why it is in the first amendment in the first place. Specifically, fears of some other religion gaining ascendancy and hurting one’s own through the federal government.

        1. Specifically, fears of some other religion gaining ascendancy and hurting one’s own through the federal government.

          The Branch Covidians, for example.

      2. Mind, the N&P clause, properly understood, is a restriction, not a grant of power: It doesn’t permit ALL laws that exercise enumerated powers, only those that are both necessary and proper.

        So Chief Justice Marshall did not understand it properly, when he said explicitly it was an enlargement and not a restriction?

        By the way, what do you think, “Proper,” means?

        1. The federal government can only do what the constitution expressly permits. The necessary and proper clause is one source of that permission, and thus enlarges the scope of federal governmental (more precisely, congressional) power.

          State governments, by contrast, can do anything unless the constitution forbids it. The necessary and proper clause thus plays no role in analyzing state governmental action.

          This is not, to put it mildly, high-level stuff.

          1. Noscitur, the U.S. Supreme Court is deciding this case on the basis of federal law. Strict scrutiny is not a California state law doctrine. Seems like when SCOTUS intervenes to say states are violating federal law, they ought to keep the whole Constitution in mind. I think if one federal law provision vitiates another federal law provision in this case, that ought not be waved away. Because pandemic responses require emergency powers for state governors, I suggest the federal Necessary and Proper Clause ought to supersede the federal strict scrutiny doctrine while deciding the case in federal court. I see no logical basis at all to say strict scrutiny rules, and the Necessary and Proper Clause is right out.

            1. The N&P clause is a federalism provision that applies only to the powers of Congress to legislate. It has no relevance to the states. Moreover, when the N&P clause permits Congress to legislate in certain areas, such legislation can never violate the First Amendment and does not change how the First Amendment analysis proceeds.

            2. Noscitur, the U.S. Supreme Court is deciding this case on the basis of federal law.

              No. See what I mean about you playing lawyer while arrogantly pretending that history is something that only a specialist can do?

              Because pandemic responses require emergency powers for state governors, I suggest the federal Necessary and Proper Clause ought to supersede the federal strict scrutiny doctrine while deciding the case in federal court. I see no logical basis at all to say strict scrutiny rules, and the Necessary and Proper Clause is right out.

              1) The First Amendment definitionally limits powers otherwise granted to the government. That’s its entire purpose. So, yes, it supersedes the N&P clause. (Or, if you want to think of it differently, things that violate the 1A are definitionally not proper.)

              2) The N&P clause is utterly irrelevant here. The N&P applies to Congress. It does not say, “State legislatures can pass laws necessary & proper to doing state governmental things.” It only acts as a delimiter of Congressional power.

          2. The N&P clause, properly understood, does not enlarge the scope of federal power one iota.

            Rather, it authorized enacting legislation to effectuate that power. But only such legislation as is necessary and proper to that end.

            Thus it is a restriction, because not all laws Congress might get an urge to enact are necessary and proper to putting into effect an enumerated power. Federal laws frequently aim at exercising powers the federal government was never delegated, such as regulating matters internal to states, and thus can’t genuinely be N&P to exercise enumerated powers.

            I fully realize this is not how the judiciary actually interpret it. I’ve remarked before that the judiciary have converted it into a “Convenient, and Eh, Whatever” clause.

            But, what do you expect, when all federal judges are selected and approved by the very people whose power the Constitution was written to restrict?

    2. “The ruling here seems to be that the state is not permitted any policy at all, based on any standards at all, except those the Court prescribes case by case”

      Bzzt. Thank you for playing, we have a lovely parting gift for you.

      The standard is very simple: Anything allowed to the secular is allowed to the religious.

      Do you allow 20 unrelated people to be in a 900 square foot place (like a 30′ by 30′ skybox)?

      Then you must allow 20 people to join together in a 900 square foot place.

      Home , business, you think it’s “essential”, none of that matters.

      The fact that you got some “experts” to babble something is irrelevant (see 1200 “public health experts support George Floyd protests), because the “experts” are all worthless.

      If you ever let any non-religious people do something, you must always let the religious do it.

      Are you really just intellectually incapable of understand that?

      1. If you ever let any non-religious people do something, you must always let the religious do it.

        That seems stupid to me. What it says in practical terms is that if anyone non-religious ever gets away with defying public health policy, that sets a standard that all religious people must always be allowed to defy public health policy with impunity. I do think that is the standard being demanded, and I reject it.

        Greg J, I’m intellectually capable to understand that when you say, “Let people do something,” you have to be clear what, “something,” is. I’m fine with ruling that no one can do certain things which spread contagion. I am not fine with saying if non-religious people do something to spread contagion, that means religious people can do the same thing to spread contagion. The remedy must be to stop the non-religious who do it, not to make everything worse by letting the religious do it too.

        I do not think that during a public health emergency, privilege to spread disease with impunity can ever be a remedy the law allows.

        1. Government always claims the existence of an emergency justifying encroachment on individual rights.

          I am not fine with saying if non-religious people do something to spread contagion, that means religious people can do the same thing to spread contagion. The remedy must be to stop the non-religious who do it, not to make everything worse by letting the religious do it too.

          That could indeed be a remedy. But it’s not one the court can impose. A court can enjoin enforcement of a law in a given circumstance; it can’t impose the law where it doesn’t exist. That’s a policy choice.

        2. “What it says in practical terms is that if anyone non-religious ever gets away with defying public health policy,”

          Except here the issue is engaging in activity expressly approved for the non-religious. If Cali had said no one was allowed, there wouldn’t have been a controversy.

        3. “What it says in practical terms is that if anyone non-religious ever gets away with defying public health policy, that sets a standard that all religious people must always be allowed to defy public health policy with impunity.”

          Yes, correct.

          That says that if “1200 public health experts” come out saying it’s ok for George Floyd protests to violate social distancing rules, and the rest of the public health establishment either agrees with them, or remains mute, that no member of the public health establishment should ever expect to be listened to abotu social distancing, ever again

          Because when you let your side get away with something, you’ve lost any authority to restrict anyone else

          1. Greg,
            Your made up rules are meaningless and have no persuasive effect on any public official.
            ow’s that for being influential?

            1. That’s nice

              Enjoy CA giving up and no longer harassing the religious

    3. “Any thoughts on why the Court has not gutted the Necessary and Proper Clause by its insistence on over-particularized application of strict scrutiny?”

      It gutted it over 200 years ago, Stephen.

    4. That’s incoherent drivel. The necessary and proper clause perhaps grants congress powers that are not specifically enumerated in the constitution. It most assuredly does not grant congress the power to override the rights explicitly granted in the constitution, whether or not it might be described as necessary, it’s hardly proper. The Necessary and Proper clause has never been interpreted as granting congress the power to override any part of the Bill of Rights.

      In any case, as Brett points out this is a state action, not congressional, so the tension is between the states police power and the first amendment.

      1. It most assuredly does not grant congress the power to override the rights explicitly granted in the constitution, whether or not it might be described as necessary, it’s hardly proper.

        What do you think, “Proper,” means in the Necessary and Proper Clause? Hint, it has nothing to do with propriety. It has to do with selecting a means reasonably tailored to achieve a constitutionally legitimate end.

        As for rights, and not overruling them. Rights can be in conflict. They can overrule each other. Every enumerated personal right comes at the expense of the collective right of self-government. I suggest one way to understand the notion of emergency powers turns on that latter point.

        Emergency powers—especially powers to cope with public health emergencies—are legitimate and long-standing. When you think about it, what defines an emergency powers situation? Isn’t it a departure from the status quo? During normal circumstances, citizens enjoy a strong presumption that the power of self-government will give way to a legitimate claim of enumerated rights. The distinction which defines an emergency presumes reversal of that presumption. During those rare instances, the public welfare is so comprehensively threatened that the power of self-government gets priority over individual rights. Your assertion that the Necessary and Proper Clause has never been interpreted as granting congress power to override any part of the Bill of Rights is not historically accurate. It has been so interpreted, during emergencies. It will be again.

        If you find that outrageous, I suggest you re-imagine the Covid-19 emergency, to make it far more severe. Imagine a pandemic which instead of sparing from death most of the population, kills young and old alike indiscriminately. Imagine 130 million U.S. fatalities. Then imagine which public health policies the public would demand to suppress so dire a threat.

        Do you think for a moment that personal rights would be permitted to overrule government’s ability to suppress such a contagion? On the contrary, there would be harsh restraints for people in open defiance of practical and necessary means to suppress a contagion like that. And I think you would probably be demanding them along with nearly everyone else.

        1. “It has to do with selecting a means reasonably tailored to achieve a constitutionally legitimate end.”

          Bzzzt!

          The Constitution specifies only two constitutionally legitimate ends: The general welfare and the common defense.

          Are you trying to say that ANY law that aims to advance either of those would be “proper”?

          No, Congress decides what advances the general welfare and the common defense, not the courts. What makes a law “proper” is that it is within the scope of a delegated power, and does not violate a right.

          You’re right that the courts have, repeatedly, authorized laws that violate rights, and/or exceed the scope of enumerated powers.

          People rape, murder, and steal, too. Why expect that the government will always behave lawfully? We can’t just say, “The government has been observed to do X, therefore X is constitutional.”

          Or else we might as well just throw the Constitution out, and replace it with one line: “The government can do anything the courts like.”

    5. Right – this “decision” is going to run right up against a lot of real-world puzzles once people pick up this ruling and run with it. Any comparator works to trigger strict scrutiny? Well, sounds like the end of Employment Div. v. Smith to me! Christian supremacy, here we come!

  5. Josh, I don’t believe you’re really mystified as to why Kagan name-dropped the judges in the majority at the 9th Circuit. Milan Smith was appointed by Bush; Bade by Obama. She was obliquely making the point that the lower court ruling was “bipartisan”.

  6. “At this point, I think we’re done with COVID-19 cases. Lower courts are now on notice.”

    The former doesn’t actually follow from the latter. Expect some degree of defiance of that notice.

  7. Probably religious zealotry. When the restriction effects religious activity, it gets intense scrutiny. No other civil right or civil liberty has attracted the degree of attention and protection from scotus. All others are clearly disfavored. Gorsuch has laid down strong language in the religious cases about the role of the court in times of crisis. That sort of language is found no where else. The vaccines partially moot out that mess, except that the religious folks have super kooky reasons not to take them. The blackman kid would have unvaccinated law students relegated to zoom, while cramming the pews regardless.

    1. Oh, come on: Abortion gets at least that level of scrutiny, or higher, and it’s not even an actual enumerated right, just something the Court pulled out of its ass.

      Look, this is what it means to take rights seriously: They actually can get in the way of things government wants to do, rather than being a mere tie breaker.

      1. “The ruling displays religious zealotry.” In six posts, this phrase has come up twice by two different people.

        I’m going to conclude it is part of the official echo chamber release notes on the subject, to be hurled up by the talking heads this 24 hour cycle. Or 48 since it’s the weekend, with Sunday shows.

        1. Yeah, I really think that’s the current party line: Demanding that the government actually respect 1st amendment rights is “zealotry”.

      2. That’s false. Abortion regulations haven’t been subjected to strict scrutiny since Casey downgraded it to the undue burden standard. Many of the restrictions that have passed since then in states which would prefer to outlaw the practice entirely would not have survived strict scrutiny, which is the standard being explicitly applied here.

    2. ” Probably religious zealotry. ”

      May the better ideas win.

      Of course, that’s easy for the Congregation Of Exalted Reason to say. We rely on the magnificent, predictable, true natural forces that vindicate reason, rather than clinging to childish superstition and supernatural illusion.

      1. You lost again. Typical bitter clinger.

      2. Open wider, Rev.

        1. Enjoy your brief moment of right-wing overreaching, folks.

          See you down the road apiece. If you’re lucky, your betters will be in a good mood as the culture war continues.

          1. All my betters are on my side, “Rev”, so I’m not particularly worried about their mood.

  8. “even if the government withdraws or modifies a
    … restriction in the course of litigation, that does not
    necessarily moot the case. And so long as a case is not moot,
    litigants otherwise entitled to emergency injunctive relief
    remain entitled to such relief where the applicants “remain
    under a constant threat” that government officials will use
    their power to reinstate the challenged restrictions.”

    Insert … your favorite case.

    Roberts should not be allowing Municipalities and States to play games by changing regulations at the last minute to frustrate review. He allowed it in NYSRPA vs City of New York. If he is unhappy he should look in the mirror.

    1. Yes. If he didn’t think that allowing a city to play games would incentivize more game-playing, he’s even more of an idiot than I thought.

  9. “the government” has wildly overstepped its powers.
    “two weeks to flatten the curve”
    turned into gestapo like behavior of raiding citizens worshiping, for more than a year.
    This “crisis” resolved itself on Jan 8th 2021. That’s when case counts fell of a cliff because herd immunity kicked in.
    We also learned months ago that lockdowns accomplished nothing. States with extensive lock downs have no better
    outcomes than states left people make their own decisions.

    It shouldn’t have taken the courts this long to step in and do their job.
    Protect the freedom of the people from an oppressive govt.

    1. 1-Herd immunity for sure has *not* kicked in yet. Case counts are off their lows. We are seeing a small surge, probably due to the combination of Passover, Easter, and spring break travel.

      Even the most optimistic estimate that I have seen, herd immunity wont kick in until the end of April.

      2- I am no longer sure that “case counts” are a relevant metric. If everyone high risk is vaccinated, and the only ones left are low risk, we should continue to see a drop in hospitalizations and deaths. People under 30 are generally very low risk. The main reason to worry about case counts is the potential spread of variants.

      3- The biggest thing we should worry about now is people from South America bringing a variant here. Seems likely Biden will fuck up the border even more than he fucked it up in the first 3 months, by allowing variants to slip in with migrants. smh. https://www.webmd.com/lung/news/20210324/variants-of-variants-seen-in-covid-ravaged-brazil

      1. 1. There is no other explanation for the drastic drop in cases. please offer another theory
        2. I agree cases is a terrible metric, but thats what was driving all govt mandates. On Jan 8th, if not herd immunity, what? Cases preceded death. Cases have leveled off and maybe ticked up, but that is cases in the 18- 30 crowd That’s why deaths have not leveled off, but continue their 7 day average decline, unabated. The point is, all of it happened despite any action taken by government.
        virus is going to virus
        3. Variants are yet more panic porn. Variants are natural occuring and have never been a concern, until Fauci saw his power evaporating.

        1. Your comment in 2 proves that we have not reached herd immunity: “Cases have leveled off and maybe ticked up, but that is cases in the 18- 30 crowd.” Herd immunity wont be reached until at least 40% of the 18-30 crowd is vaccinated (or gets covid naturally).

          Since deaths lag cases by 3-4 weeks, its too early to tell about deaths. They may tick up, or not.

          It’s impossible to say right now whether the variants are panic borne or not. The Pfizer vaccine is effect against some, the Moderna one is not.

          Keep in mind two things can be true at the same time: The virus remains a serious problem, and the lockdowns are not justified.

          1. Cases have always been a bad metric.
            Why did we need to flatten the curve, and why, now, when the curve is flat, do we ignore the result we sought. We want a rapid increase in covid infections to reach full immunity, now that all the vulnerable have been vaccinated.
            Healthy people under the age 50 have nothing to fear from the common cold. Which is exactly what covid represents to the healthy.

            1. “Healthy people under the age 50 have nothing to fear from the common cold. Which is exactly what covid represents to the healthy.”
              You are a dangerous know-nothing with such a gross LIE.

              1. You are a dangerous know-nothing with such a gross LIE.
                Says a troll parroting talking points
                FACTS might be used to prove me wrong, thus forcing me to crawl away in abject embarrassant.

                1. “iowantwo”
                  Such a pathetic defense.
                  But you can take some minor satisfaction that you have changed my mind about one thing:
                  Twitter and Facebook should ban the likes of you.

              2. I made a spreadsheet with MN’s numbers about a week ago.

                For age 0 -49, MN records 337,438 cases and 150 total deaths, for a death rate of 0.04%

                That’s 1 death for every 2,250 people who got it enough to be tested.

                If you walk around in fear of those kind of odds, you’re mentally ill

                1. Greg,
                  The daily numbers are notoriously noisy.
                  BUT your numbers are incorrect.
                  As of today, MN had 7012 deaths in ~520,000 cases for a case fatality rate of 1.34%
                  The overalll CFR for the US is about 2%.

                  1. I did later notice your 0 – 49 proviso. It is likely that the rate is lower than 1.3 % for that age group, but that i grossly biased by the very low CFR for those under 16.
                    ANd new variants seem to be somewhat more virulent for the young than the original strain, but good numbers are not available and won’t be as long as the US does not do DNA scans of the virus in all reported cased.

                    1. What I’m responding to:
                      “Healthy people under the age 50 have nothing to fear from the common cold. Which is exactly what covid represents to the healthy.”
                      You are a dangerous know-nothing with such a gross LIE.

                      But for all people under 50, the numbers are “no big deal.

                      But, i just went and pulled the latest MN numbers:
                      0-49: 362,405 cases, 155 deaths
                      20-49: 267,944 cases, 153 deaths (1 0-4, 1 5-9, 0 10-19)
                      So for 0-49 it’s still 0.04% chance of death, for 20 – 29 it’s 0.06% chance of death, or 1 in 1,751

                      To get a death rate above 1%, you have to get to 65-69 age range

                      There was never the slightest justification for locking down the general public for any length of time

                    2. Greg,
                      It you actually had been looking at data all along you would have known that the early CFR was much higher that it present value, In the US it was as high as 6%.
                      But then you’re the type that never let’s facts interfere with your dangerous ideology.

                    3. The original case fatality rate was vastly inflated by the decision of several states to reduce their elderly population by forcing nursing homes to take in people known to be contagious. Once that policy had run its course, the rate dropped dramatically.

                    4. The early CFR was driven by 2 things:

                      1: As Brett Bellmore pointed out, Dem governors murdering old people in LTCFs
                      2: Lack of tests, so it was only the most sick who were getting tested

                      Now we have real numbers, and you demand we ignore them, because you’re the type that never let’s facts interfere with your dangerous ideology.

                      3: We’ve known from the beginning that Covid 19 mostly killed the old. The proper response was quarantine the old, and leave everyone else to act as they think best. Those high death rates were because Democrat governors often did the exact opposite. FL’s much better rates were because Desantis did it right

                    5. ““Healthy people under the age 50 have nothing to fear from the common cold. Which is exactly what covid represents to the healthy.””

                      Greg
                      You have obviously looked at NO relevant statistics about covid-19 or rhinoviruses or influenza. You just have the religious dogma that covid = common colds for people under 50. That statement is a gross lie as any search of the relevant medical literature will show.
                      You might even read CNN’s “Michigan’s Covid-19 surge becomes a reality check for a restless nation” or “For many sufferers of long Covid, proving they are sick is a big part of the battle” which talks about effects on some people under 40.

                      But you are welcome to glorify in your lies and hope that you also can experience this “common cold” equivalent

                    6. ” You might even read CNN’s”

                      I could be a moron, and read something from CNN. But, since I’m not, i won’t.

                      I posted actual numbers. You haven’t responded to them, because your garbage story falls apart when you look at the actual numbers, so you don’t.

                      Have fun with your pathetic and worthless life

            2. “There is no other explanation for the drastic drop in cases. please offer another theory”

              “Cases have always been a bad metric.”

              Don’t retreat, reload!

              1. QA,
                I should know better than to argue with a mindless troll. But after doing active academic research on SARS-CoV-2 for more than a year, it is nauseating to read such dangerous lies from “iowantwo” and his ilk.

                1. Yeah, sometimes you just have to call out such ridiculousness though. Good on you.

                2. But after doing active academic research on SARS-CoV-2 for more than a year

                  You sure do mention this a lot. Almost as much as you mention your Really Smart Friends that know a bunch of stuff.

                  It’s as though you feel like bravado and credentialism (and the occasional cut-and-paste list of citations) substitutes for actually having anything of substance to say.

                  1. Brian,
                    I have little to say about fools like yourself. Just go wallow in your ignorance and worship the Orange Clown

          2. The Pfizer vaccine is effect against some, the Moderna one is not.
            This is the crap the ignorant masses are fed by the pandemic porn purveyors.
            Define effect(ive). This is classic Fauci doublespeak.
            The “experts” tell us Johnson and Johnson is ‘only’ 70% effective.
            But, when you force them to drill down on exactly what that means, they admit that in the tests, of those that were infected, exactly ZERO needed hospitalization, and none died.
            But “experts” keep moving the goalposts.

            The latest?
            WHO has changed the definition of herd immunity.
            old:
            When a population is immune, either through vaccination, or immunity developed through prior infection,
            new
            If a threshold of vaccination is reached herd immunity is achieved through vaccinations by protecting the people from the virus, not exposing them to it.

            1. “This is the crap the ignorant masses are fed ”
              spoken by the most ignorant and malicious among the ignorant


              1. “This is the crap the ignorant masses are fed ”
                spoken by the most ignorant and malicious among the ignorant

                Still trolling, still not contributing facts to the discussion
                You are consistant

                1. No fact?
                  I wrote many facts.
                  You can’t read or understand them. In fact you are a malicious troll and should be cancelled

                2. “You are consistant”

                  Half-educated, science-disdaining, belligerently ignorant, lethally reckless right-wingers are among my favorite culture war casualties. I would say rendering these deplorable clingers politically irrelevant and culturally obsolete is important work, but it is so much fun it doesn’t seem right to call it work.

            2. “Define effect(ive). This is classic Fauci doublespeak.”
              More ignorant vomit. Effective is well spelled out in the test protocols submitted to the FDA. Fauci had nothing to do with those criteria.
              But you and your ilk don’t care about facts or about experimentally verified procedures. Politics BS is your stock in trade.
              Your comment about the WHO definition actually has nothing to say about what is required for heard resistance. The scientific criterion is that Ro falls well below 1.0. In that case community spread is stifled, however, persistent environmental contamination as has been proved in Italy and France will still lead to outbreak clusters.

              1. “persistent environmental contamination as has been proved in Italy and France will still lead to outbreak clusters.”

                You got a cite for that? Because the CDC said just this week that:

                “The principal mode by which people are infected with SARS-CoV-2 (the virus that causes COVID-19) is through exposure to respiratory droplets carrying infectious virus. It is possible for people to be infected through contact with contaminated surfaces or objects (fomites), but the risk is generally considered to be low.
                Because of the many factors affecting the efficiency of environmental transmission, the relative risk of fomite transmission of SARS-CoV-2 is considered low compared with direct contact, droplet transmission, or airborne transmission
                Fomite transmission is difficult to prove definitively, in part because respiratory transmission from asymptomatic people cannot be ruled out.”

                It’s a good thing the comments policy here is lax,
                spreading disinformation that’s contradicted by the CDC can get you banned from many platforms.

                1. I cannot give you a full cite, Kazinski. However the report on the measurements in Italy in December 2019 can be found in
                  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7428442/

                  1. Note that is an National Institutes of Health website

                2. “It’s a good thing the comments policy here is lax,
                  spreading disinformation that’s contradicted by the CDC can get you banned from many platforms.”
                  The statement that the virus was widespread in the environment and the CDC comment that only several percent of cases are not accounted for by community transmission are 1) neither inconsistent, 2) are time variable. The first cases must have been spread environmentally.

                3. I’d say further more that the CDC comment has many caveats that certainly apply to the stage of the pandemic now driven by community transmission.

                  The explosive growth in NYC has been easily modeled by a person-to-person driven wave of transmission. That does not say that if you are over 80 and in generally poor health that you should not pay attention to hygiene such as disinfecting object coming into your environment using a mild bleach solution.

                  So I am not scared off about reporting published science from reputable groups by public guidance, especially when there is no tension between that guidance and published data.

                  I will tell you that CDC has been wrong about the general applicability of its early 2020 warnings about co-morbidities. Those assertions may be prudent for those in ill health to heed, but they are NOT consistent with the epidemiology seen in a sample of nations worldwide containing a total of 6 billion people

                  1. The explosive growth in NYC has been easily modeled by a person-to-person driven wave of transmission.

                    Also by 0.3788972x^2. Must be correct!

                    1. Brian,
                      Your reply is so pointless that I will spare you the equations of the model that is based on simple physics and network theory rather than by fitting an arbitrary curve.

                    2. Brian,

                      Just so you can see what real scientific analysis looks like here is the introduction:

                      We propose the adoption of a relatively simple 1-D transport model to describe the evolution and spatial distribution of infections by virus. This analytical model is intended as a first step with a transport theory whose key elements have been found consistent with the results of conclusive experiments on laboratory plasmas. Then the serious limitations of the usually adopted zero-dimensional models are avoided and, in addition, new kinds of nonlinear processes can be included in the relevant theory . In particular, we consider asymmetric disk geometries with population surface densities Σ_j (r,t) that are functions of r and t. Non-axisymmetric perturbations (i.e. rippled and granular disks) will be the subject of later analyses.

                      The introduced “infection disks” involve, for a start, only three (conventional) population densities. The relevant balance equations include components of these equations that reflect the observed tendency of infections to intensify in rather limited localized regions. Thus, we define by Σ_S the surface density of the population susceptible to infection, and by Σ_I and Σ_H the corresponding densities for the infected and the healed populations.
                      The adopted balance equations
                      to describe the evolutions of the three population densities are
                      ∂/∂t Σ_S+∇∙Γ_S=-Σ_I Σ_S (1)
                      ∂/∂t Σ_H=γ_H Σ_I (2)
                      ∂/∂t Σ_I+∇∙Γ_I=Σ_I Σ_S-γ_H Σ_I (3)
                      Here, d_I is the infective interaction radius (“cross-distance”) involving the S and the I populations, and we consider γ_H and 〖 to be the result of “microscopic” processes.

              2. Effective is well spelled out in the test protocols submitted to the FDA. Fauci had nothing to do with those criteria.

                For some strange reason, you, doing academic research for more than a year and all, lacked the ability to define, in a few sentences what “effective” means. The word is tossed about by “experts” like yourself, but the term is seldom explained in the context its being used.
                All the vaccines are 100% effective at keeping people out of the hospitals, and alive. That 100% also includes the first shot of a two shot protocol.
                Which means we could have vaccinated twice as many people and saved thousands of lives.
                But for some reason, Fauci has never prioritized saving lives. He has never really stated what his goals were.

        2. “There is no other explanation for the drastic drop in cases. please offer another theory”
          First, there is no heard immunity, only herd resistance. Second once the spreader events subside, the case count drops, that was true last summer when Ro was certainly more than 2. Third the B.117 variant an other variants are rapidly becoming the most prevalent. The average virion count in mucosal effluent is 100x greater than the in the original variant making the new variant much more contagious. The B.117 variant also also changes the attachment of its pike protein to the ACE-2 receptor lowering the effectiveness of the vaccines.
          Finally it is in the nature of viruses to mutate. You do your fellow citizens a severe disservice to spread bullshit such as “panic porn.”
          What you call panic porn is experimentally measured biomedical fact

          1. Don,
            Quite a lengthy post with lots of medical theory.
            What you did not do is translate all of that into a public risk.

            I’ll await your response to clean up your shoddy work

            1. You fool. Experimental results are NOT theory. But you do not know the difference. Your desired translation into public risk is much easier asked for than done. Except that we KNOW fro the present experience (facts) in Italy, Germany and France, that the present lull in the US likely (maybe 60%) is a prelude to an new surge as the B11& variant and its South African and Brazilian counterparts become the predominant strains in the US.
              You and your ideological buddies are living in a fool’s paradise. Your spreading lies about the pandemic is a danger to the public welfare.

              1. Fauci also said this week that he does not think there will be another surge.

                ““What we’re saying is double down, just hang in there a bit longer,” Fauci added, “and the vaccine, and the vaccinations of people in this country are going to override the surge of the virus. There’s no doubt the vaccine is going to win out.”

                Ironically the states like Michigan that have had lower infection rates 8214 per 100k (41st) are further away from herd immunity, than say a state like ND 13730/100k. The CDC estimates that at least 4x as many people have had covid than confirmed cases. Combine that with the vaccination rates some states ARE reaching herd immunity, but some like Michigan are lagging.

                1. “Fauci also said this week that he does not think there will be another surge.”
                  He, like you and I, is welcome to his opinion.
                  Of course part of his job i to be a medical cheerleader and encourage as many as possible to get vaccinated. In that regard, I hope that he succeeds.

                  1. Of course part of his job is to be a medical cheerleader and encourage as many as possible to get vaccinated.

                    Clown nose on….
                    Clown nose off

                    The science will do that. we don’t need a Scientist posing a cheerleader or visa versa.
                    The past 30 days or so have shown Fauci to be “confused”. like why Texas did not have an increase in cases when they lifted all restrictions.

                    1. Asshole, let me translate the CDC guidance. “Wear a mask, stupid.”
                      As for Fauci, he has more good sense and brains in his little finger than you have evidenced in any post here.
                      He has managed to keep a highly competitive high profile position for 45 years. You criticism of his is as pathetic as that of the Orange Clown

                    2. They’ve actually had three guidances.

                      1) “Don’t wear a mask, stupid!”
                      2) “Wear a mask, stupid!”
                      and, lately,
                      3) “Stupidly wear a mask!”

                      I’ve already had Covid, I’m 62, it was a couple days of a bad head cold, followed by two weeks of boring quarantine. And I’m getting very tired of demands I wear a mask now that I can’t, as a practical matter, catch or transmit it anymore.

                    3. Brett,
                      Your claim that you cannot catch Covid-19 again or transmit to anyone is demonstrated to be false.
                      So try to be a good citizen for a change

              2. Your desired translation into public risk is much easier asked for than done.

                That’s what moves all of your “claims” from fact to theory.
                You have just admitted, with all your claimed knowledge, you are incapable of using the information to make public health recommendations. Therefore you have nothing but a theory.
                I have not missed the fact, you have no explanation for the Jan 8, 2021 cases decline. Leaving the only explanation of herd immunity.

                1. You actually have no idea of what a theory is. For you it is spout out you lower aperture.
                  The public health advice is that ALL get a vaccine and that you continue with distancing.
                  You wanted advice, you got it. It you don’y do that you can be sure that the risks of another serge will double as the serge is starting again in Greg’s Minnesotata

                  1. The public health advice is that ALL get a vaccine and that you continue with distancing.

                    Great! Finally something concrete.
                    unambiguous mission statement.

                    Now all you have to do is state a goal. Tell me how I know the actions attained the stated goal.

              3. is a prelude to an new surge as the B11& variant and its South African and Brazilian counterparts become the predominant strains in the US.
                But all calico cats are females.

                See. Stating medical facts in no way mean they are relevant.
                Why do I care about the variants? All the vulnerable are vaccinated

                1. “Why do I care about the variants? All the vulnerable are vaccinated”
                  Stupidity magnified by arrogance knows no bounds.

                  The vaccine are a bit less effective against the new variants which are also more virulent and more transmissible. That trend will continue aslo long as the number of infected persons remains high

              4. Except that we KNOW fro the present experience (facts) in Italy, Germany and France, that the present lull in the US likely (maybe 60%) is a prelude to an new surge as the B11& variant and its South African and Brazilian counterparts become the predominant strains in the US.

                I’m bookmarking this for a good time down the road, Peter Peter Panic Porn Eater. (I assume you think all that means Something Bad is going to happen, right?)

                1. You bet you ass Brian.

                  “Peter Peter Panic Porn Eater”
                  Grow up.

                  When a close relative or friend of yours dies of covid and you’ll sing a different tune. We already lost 575,000 to covid in the US.

                  1. When a close relative or friend of yours dies of covid and you’ll sing a different tune. We already lost 575,000 to covid in the US.

                    This is how I know a person is clueless troll, spouting talking points.
                    They always revert the the emotional appeal. Somehow a person claiming to be driven by the science devolves into anecdotes that are meaningless. Yes people are going to die. People are always dying. What to day about it? Because we have a years worth of facts that prove nothing the government demanded had any effect. Not until January 8th, 2021 when the virus ran out of people to infect, did deaths start a rapid decline.

                    1. “Not until January 8th, 2021 when the virus ran out of people to infect”
                      Stupid one.
                      The population of the US is exceeds 320 million. It is not 30 million.
                      But I realize that you learned to count cases like the Orange Clown counted votes.
                      May you be the 600,00th

      2. These aren’t even *cases*, though: they are positive PCR tests.

        1. Yes, and as George Floyd had a positive PCR test, we can cancel the murder trial as COVID killed him…. 😉

          1. Ed,
            Chauvin is going down for murder 2

        2. That is a valid distinction made by virologits between SARS-CoV-2 infection and the infection developing into a case of COVID-19

    2. ““two weeks to flatten the curve””
      A recent examination of the early spread of SARS-CoV-2 by NHK news finds that this concept of the spread of the virus is seriously flawed. For example although Italy declared its first case on Jan 24. A review of waste water by the government agency in rome that tracts infectious diseases, found coronavirus level in wastewater in mid december as high as level in March. A similar retrospective examination of CAT scans and PCR swabs in France found first infections in late France, two months before the first reported French case.
      The virus was broadly spread throughout the environment in both countries before the apparent explosion of cases. Thus the contagion model was at best seriously insufficient to explain the rapid explosion of cases

      1. So fart-sniffing researchers don’t know shit after all? Is that your point?

        1. What a fool.
          Back to the schoolyard Brian where you can worhip the Orange Clown all you’d like.

      2. The virus was broadly spread throughout the environment in both countries before the apparent explosion of cases. Thus the contagion model was at best seriously insufficient to explain the rapid explosion of cases

        You keep making pronouncements like this, pretending it means something. Lots of words with lots of ambiguity, sprinkled with vagueness, like “apparently”, “broadly”, “explosion” “seriously” “rapid”
        Lots and lots of adverbs for scientific discussion.

        1. You know nothing of science. You care nothing about actual work done. You just have your brain rotted by the Orange Clown.

          But just to show what you can’t understand:
          Just so you can see what real scientific analysis looks like here is the introduction:

          We propose the adoption of a relatively simple 1-D transport model to describe the evolution and spatial distribution of infections by virus. This analytical model is intended as a first step with a transport theory whose key elements have been found consistent with the results of conclusive experiments on laboratory plasmas. Then the serious limitations of the usually adopted zero-dimensional models are avoided and, in addition, new kinds of nonlinear processes can be included in the relevant theory . In particular, we consider asymmetric disk geometries with population surface densities Σ_j (r,t) that are functions of r and t. Non-axisymmetric perturbations (i.e. rippled and granular disks) will be the subject of later analyses.

          The introduced “infection disks” involve, for a start, only three (conventional) population densities. The relevant balance equations include components of these equations that reflect the observed tendency of infections to intensify in rather limited localized regions. Thus, we define by Σ_S the surface density of the population susceptible to infection, and by Σ_I and Σ_H the corresponding densities for the infected and the healed populations.
          The adopted balance equations
          to describe the evolutions of the three population densities are
          ∂/∂t Σ_S+∇∙Γ_S=-Σ_I Σ_S (1)
          ∂/∂t Σ_H=γ_H Σ_I (2)
          ∂/∂t Σ_I+∇∙Γ_I=Σ_I Σ_S-γ_H Σ_I (3)
          Here, d_I is the infective interaction radius (“cross-distance”) involving the S and the I populations, and we consider γ_H and 〖 to be the result of “microscopic” processes.

          1. Relavence?
            Or is this just a random cut and paste exercise?
            Or does this formula explain why cases fell out of bed on January 8, 2021?
            Because despite being vocal about herd immunity not being the cause, you are strangely mute about the real reason for the rapid decline? Dr Markey of John Hopkins disagrees with you. But he’s just an idiot MD. Not as smart as you and your “year of academic scholarship, all things covid”

    3. “This “crisis” resolved itself on Jan 8th 2021. That’s when case counts fell of a cliff because herd immunity kicked in.”
      A gross LIE based on the bullshit politics of the Orange Clown

      1. Bringing this here, so it’s harder for you to miss it

        I made a spreadsheet with MN’s numbers about a week ago.

        For age 0 – 49, MN records 337,438 cases and 150 total deaths, for a death rate of 0.04%

        That’s 1 death for every 2,250 people who got it enough to be tested.

        If you walk around in fear of those kind of odds, you’re mentally ill

        So, please, tell us why the under 50 crowd needs to live in fear of Covid

        1. For one, death’s not the only bad thing that can come of Covid.
          For another, what happens to you isn’t the only bad thing that can come from you catching it. I mean, you have grandparents and such, right?

          1. 1: Great, so double the numbers. it’s still not worth shutting down the economy / hiding at home

            2: No, my grandparents are all dead

            3: So are a lot of other people’s grandparents, because Democrat Governors like Cuomo (and, apparently MN’s Tim Walz. Which would explain why 80% of MN covid deaths through last summer were in long term care facilities) made a habit of sticking Covid+ people in with the people most vulnerable to Covid.

            Go out, live your life, call up the old people in your life, don’t visit them. That would have saved a whole lot of lives from Covid.

            Everything else is stupid wanking

            1. “Everything else is stupid wanking”
              Spoken like a truly ignorant wanker. Greg you’re pathetic.

          2. For another, what happens to you isn’t the only bad thing that can come from you catching it. I mean, you have grandparents and such, right?
            All the vulnerable have been vaccinated. That is why the claim of needed all vaccinated is silly. If you are below 50 and healthy, covid is nothing but a cold.

            1. “covid is nothing but a cold.”
              There is no point to argue with someone so stupid.

        2. Greg,
          For the original strain the UK NHS reports that the group from 15 to 44 accounts for 10% of the deaths, the group from 45 to 64 accounts for 15% of deaths.
          However,
          Many long term effects have, including neurological effects been reported, AND your not dying does not mean that those older than you do not care about you being a disease vector like a vermin.

          1. MN (updated today):
            15-44: 83 deaths
            45-64: 667 deaths
            Total deaths: 6944
            0-64: Less than 11% of deaths

            “Many” is a BS word. 750 deaths out of a population over 3 million, Add in 10x as many with “long term effects”, and you’re at 0.4% of the population.

            Lockdowns are not, and never have been, even remotely justified

            1. “Lockdowns are not, and never have been, even remotely justified”
              Greg, have you ever done, or even read a cost-benefit analysis. Of course not. The Orange Clown told you what to think

              1. Speaking of clowns, here we have Don

                He makes claims, has them completely blown up by the evidence, then doubles down on them anyway

          2. AND your not dying does not mean that those older than you do not care about you being a disease vector like a vermin.
            A vector to who? All the vulnerable have been vaccinated.

            1. Says you. With your malicious posts they won’t be

              1. Don, you demand an action to address a ‘vector’ why?

                That’s why this is all theater. All refuse to identify a goal.

                My posts only seem malicious to those that lack the ability to justify their positions concerning their demands continue to be respected.
                This thing ended January 8th, 2021. Three months later you still demand people submit to protocols that have been proven unneeded. All the vulnerable have been vaccinated.
                What is the stated goal? It must not be saving lives, because that has been accomplished.

                1. “This thing ended January 8th, 2021. ”
                  Repeat your LIE.
                  Clearly your goal is to have 1,000,000 Americans die of a covid variant

                  1. Clearly your goal is to have 1,000,000 Americans die of a covid variant
                    What a great example of panic porn
                    claiming a “variant” will kill 1 million Americans. No cite, no theory, no evidence of any sort of even a single death from a variant. But, but, pay attentions to your betters, ignore the facts in front of you. Forget that even today, the experts lack explanations of events that happened 12 months ago, and don’t talk about the protocols demanded by experts, had no effect on the spread of a virus.

                    1. Call it it panic porn. How cares what you think?
                      No one with any power over the public health in America thinks as you do.
                      So suffer under the rule of your betters

        3. I would also note that your statistics accurate or inaccurate is not relevant to iowantwo’s claim the the pandemic ended in the US on January 8

  10. Roberts is a disgusting, ungrateful, traitorous piece of shit.

    1. Projection is a hell of a drug.

    2. When the Court is enlarged, I hope Prof. Blackman and Aktenberg78 get a chance to console each other.

  11. I look forward to the irony of 5 conservative justices, quoting Roberts NFIB v Sebelius, to tell us that the $200 NFA tax is not a tax, it a thinly disguised exercise of Federal police power. lmao. What goes around comes around.

    1. The ultimate irony is if Biden’s stupid “arm brace” restriction ends up in the short barreled rifle portion of the NFA being invalidated in its entirety. I acknowledge that the “arm brace” is an end run around the SBR rule. However, the SBR rule is the problem. Saying that a 16 inch barrel is just fine, but a 14.5 inch one is suddenly so dangerous doesn’t even pass rational basis, much less strict scrutiny.

      1. Better if the NFA gets tossed in it’s entirety.

        One once *could* own military weaponry, Francis Bannerman VI established a business selling it in NYC, buying 90% of the Spanish arms after the Spanish/American war. He sold surplus US cannons to towns or anyone else who wanted them. For safety reasons he couldn’t store most of this in NYC so he built a castle on an island in the Hudson river — and one afternoon in 1920, his ammo dump exploded.

        Yes, surplus WW-I artillery shells. See: https://roadtrippers.com/magazine/bannermans-castle-pollepel-island/

        So what. exactly, is the Constitutional authority of the NFA?
        Not 90 years ago, but now….

        1. More on Bannerman — people really could buy this stuff…
          https://www.americanheritage.com/great-gun-merchant#1

      2. I don’t think that’s an accurate summary of the law. (Are you a lawyer? Asking for a friend.)

        I mean; saying that a 21-year-old can buy booze, but someone 20 years and 364 days old can’t???…makes no rational sense. Except that courts seem perfectly willing to allow line-drawing. And if you can do it for drinking, and getting a driver’s license, and joining the military, and running for president. Why not for guns also?

  12. Never has so many been so enraged over so little.

  13. The Congregation Of Exalted Reason welcomes the Supreme Court’s decision, which provides a basis for vindication of each Congregant’s exercise of exalted, reasoned beliefs.

    Our Congregation’s principles, derived from observation of the predictable, magnificent natural forces that vindicate reason, through science, include:

    1) rejection of superstition-based education, to the point at which a Congregant must neither accept the validity of superstition-tainted degrees nor fund — directly or indirectly, through any device whatsoever — superstition-based education;

    2) a woman’s fundamental right to abortion, subject solely to reasonable restrictions;

    3) rejection of bigots (for example, those who hate gays beyond reason, misogynists, racists, xenophobes), to the point at which a Congregation must not associate with nor engage in commercial transactions with bigots;

    4) embrace of immigrants, to the point at which each Congregant is called to do everything possible to promote immigration and immigrants, and to refrain from funding or supporting — directly or indirectly, through any device whatsoever — those who reject or mistreat immigrants or seek to impose unreasonable restrictions on immigration;

    5) embrace of natural mind-altering substances, such as marijuana and cocaine, that enable Congregants to access from a unique and fundamentally important perspective a broader range of natural forces and experiences;

    6) a proper approach to destructive weapons that threaten reason, particularly guns, to the point at which a Congregant (1) must recognize a right to possess a reasonable firearm for self-defense in the home and (2) may not permit any other person to possess a firearm on property, residential or commercial, owned or controlled by the Congregant; and

    7) embrace of the right to vote, to the point at which Congregants must seek to criminalize voter suppression and must not accept, comply with, or fund — directly or indirectly, through any device whatsoever — unreasonable restrictions on voting.

    The Congregation’s reliance on the predictable, magnificent forces of reason and nature — as revealed through science — enables Congregants to recognize and follow the reasonable, natural, and best path for all persons. Those who share reverence for reason — and also, therefore, science, progress, education, inclusiveness, modernity, nature, and freedom — are welcome to join the Congregation, and to support its efforts to vindicate the reason-based liberties protected by the First Amendment, as interpreted by the Supreme Court.

    Thank you, especially to those who acknowledge, respect, glorify, and promote reason.

    — Rev. Arthur L. Kirkland, BETTER*

    * Better Enlightenment Through The Edifying Reason

    1. It seems “reasonable” and “unreasonable” do a lot of work here without any definitions or limitations.

      1. We will explain it to you as we go along.

        These newfound legally enforceable liberties will be a great sword and shield for the cause of reason and progress, which too often is disrespected and abused by those who rely on superstition and backwardness. The Congregation Of Exalted Reason welcomes our new legal protections.

    2. So in summary you are a bitter clinger.

    3. 2) a woman’s fundamental right to abortion, subject solely to reasonable restrictions;
      No rights are absolute

      1. Uh, “subject solely to reasonable restrictions” is literally the next part.

        1. Yes, but the “subject solely to reasonable restrictions” is a lie, since no one in that church ever finds any restrictions “reasonable”.

          Prove me wrong. List the top 10 biggest “reasonable restrictions” on abortion

          1. I would likely begin with a reasonable deadline for an abortion.

            Only a fool would object to reasonable medical conditions, from licensure of practitioners to standards for facilities and from informed consent to guidelines for procedures.

            1. And that “reasonable deadline” is?

              “licensure of practitioners to standards for facilities”

              You mean like requiring that abortion doctors have admitting privileges at a nearby hospital in case something goes wrong?

              No, you lefties have rejected that one

          2. You lose. There’s lots of restrictions on abortions. Trap laws, waiting periods, mandated spiels, etc.,

            1. Abortion absolutists tend to struggle in reasoned debate. Mostly, they bluster and stammer. I blame the superstition and backwater education.

            2. I just asked you “what are reasonable restrictions on abortion?”

              And you did not provide a single one.

              Nowhere in your post did you say which are “reasonable”.

              Is reading really that hard?

          3. Greg, I see that you have no answer to QA’s answer on reasonable restrictions.

  14. States and cities have had a year now to do their homework, but still refuse.

    Demonstrate that your rules are the least restrictive way to accomplish your compelling interest or GTFO of this honorable court.

  15. The dispute over status of religion reminds me of the dispute in _Young v. UPS_ over whether pregnancy had been granted “most-favored nation” status in employment law.

  16. Never has the word “comparable” done so much work to avoid actual and detailed comparisons between proscribed and allowed activities. I suppose if you are going to whip out an opinion in 9 hours, you really don’t have time to deal with things like facts. I’m not sure this decision is wrong, but it sure is full of vague generalities, quite unpersuasive. Unless of course it was the outcome you favored regardless of the actual facts.

    1. “don’t have time to deal with things like facts.”
      that also applies to the 9th Circuit.

      1. I believe it. My only point is that SCOTUS is granting the injunction here, with no actual reasoning that shows that religious activities are being treated worse than non-religious ones, other than their repeated assertion that the activities are “comparable.” Are they?

    2. If the First Amendment means anything, the burden must be on the government to show why it treats religion worse than activities that are not explicitly protected by the Constitution. “Because we really feel strongly” is not sufficient.

      Changing the rules mere hours after an appeal to the Supreme Court essentially admits that the state’s action was arbitrary and capricious.

      1. I agree with your first statement. But you are begging the question as to whether the religious activities in question are exactly analogous to the non-religious ones.

    3. “I’m not sure this decision is wrong, but it sure is full of vague generalities, quite unpersuasive.”

      Are you talking about the 9th Circus’s ruling?

      Or about Newsom’s justifications for the rules that were tossed?

      “No more than 3 families”? So 4 single people from different families can’t join together in a 2500 square foot house, but 36 people from three different families (mother, father, and 10 kids each) in a 1000 square foot house are just fine?

      Frankly, the idea that that cleared “rational basis” is rather astounding.

      “Rule by expert” is dictatorship. It has no legitimacy, and the Courts should be striking it down wherever it rears its evil head

      1. ““Rule by expert” is dictatorship.”
        Using value-laden terms with no basis in the civic structure is not a convincing technique of argument

      2. Greg J indicates he prefers the “below-average man on the street” approach to “rule by expert.”

        I would have predicted that from a disaffected clinger.

        1. Geez, RAK. I have to agree with you again.

      3. “can’t join together in a 2500 square foot house”
        A cheap bit of sophistry.
        The issue comes when they are in the same 300 sq ft room. That would allow 2 people with the windows open.

        1. The rule being defending was “no more than 3 families allowed in a single home.”

          Are you claiming that’s not the rule? Are you claiming the rule allows more families as the house size grows? How about if they use the back yard?

          Do tell, with links

          Otherwise, the only thing cheap here is you

      4. “Are you talking about the 9th Circus’s ruling?”

        No I wasn’t. I haven’t read the 9th’s ruling, and am perfectly willing to accept your characterization of it. As I said, I don’t know if I disagree with the SCOTUS ruling here, but it sure isn’t based on any good, detailed comparisons between what is allowed and what isn’t. And I certainly have no desire to defend Gavin Newsom.

  17. I’ve read the per curiam opinion now. I don’t have any qualms with points of law, and frankly I don’t think the dissent did either. The difference is what is considered comparable. The majority seems to make a general definition of “comparable” and then just say those places are comparable ipse dixit. There is no real analysis on what makes them comparable. And it isn’t immediately evident to me that they are.

    On that point I’m also not sure where the burden lies on that question. The opinion seems to read that heightened scrutiny doesn’t apply until it is shown not to be comparable. That would indicate that petitioners bear the burden. But the court only ever talks about burdens being on the government, which admittedly is after they already “determined” they were comparable. The answer to this is pretty important. Generally factual determinations like that the courts defer to the government. It isn’t until subjected to heightened scrutiny (intermediate or strict) that they don’t. But here without answering the question, and without explaining why they are comparable, just said they are. They only blamed the 9th Cir. for not finding the other activities mentioned posed a lesser risk (which incidentally already tells me they may not have thought about this critically since appellate courts don’t find facts, district courts do) . But who had the burden of showing that? Was that because it was just evident to them? Did they put the burden of that on the government without saying anything? For as “clear” as they say they have been, they have not.

    1. What makes it comparable?

      Square footage. Number of people. Number of people from different bubbles. Maybe ventilation / filtration system.

      Here, it’s really simple: stop going to war against the religious, and the Supreme Court will stop smacking you down

      1. Well the majority said risk of transmission, which sounds logical to me. They just did no analysis to prove that the things they called comparable indeed meet that. I don’t know if they do or not, but it isn’t clear.

        Going to war is pretty strong for this law. No gatherings of more than 3 families were allowed for any purpose. Not sure how that is war with religion. There have been other cases where that fits, this doesn’t seem like one of them.

        1. From the beginning, Newsom has been at war with Christianity in his covid orders.

          And IIUC, it’s not a law, it’s just another executive order.

          It’s not the job of the Supreme Court to do the “risk of transmission” analysis, it’s the job of the State government, and the District Court.

          Since neither did it, the rule’s invalid

  18. Oh, boy. The commenters on this story in the Washington Post are having conniption fits. You always know that SCOTUS is doing something right when it causes a tizzy amongst the Liberaloti.

    https://www.washingtonpost.com/politics/courts_law/supreme-court-california-coronavirus-church/2021/04/10/182faec2-99e8-11eb-962b-78c1d8228819_story.html

    1. It’s a truly sad person who gets so much joy and guidance from the upset of his ‘enemies.’ I mean, I certainly find many politically oriented people to be wrong, but I take no joy in their anger or outrage nor do I think that whatever sparks that must be something good then.

      1. Since the posts from Liberal commenters on the Post site are generally insult of anyone who doesn’t agree with them 100% about not only anything, but also about stuff they just make up out of whole cloth, I don’t feel too bad about seeing them discomfited.

  19. The majority is not off base when it says whether two activities are comparable is based on the government’s asserted interest. The error is the determination that in-home activities are comparable to retail shopping. Kagan describes how the Ninth Circuit analyzed the factual record to conclude the two are not comparable in the spread of COVID.

    The majority instead says the government “must do more than assert that certain risk factors are always present in worship, or always absent from the other secular activities the government may allow.” In effect, the majority has stated the government must overcome strict scrutiny in establishing that a regulated religious activity is not comparable to an unregulated secular activity. But, that step in the analysis is what is supposed to determine whether strict scrutiny applies in the first place.

    Under this doctrine, Smith is a dead letter.

    1. “Under this doctrine, Smith is a dead letter.”

      This is why all the ‘the Circuit has been told time and time again what’s wrong with what they are doing’ doesn’t hold imo, the majority has been using shadow docket per curiams that don’t explicitly overrule past holdings like Smith but make it difficult to see how they can be squared with those holdings. It’s a mess and of course the lower Courts might be confused as to what to do.

    2. “The error is the determination that in-home activities are comparable to retail shopping.”

      Well, since retail shopping has workers from different households constantly being exposed to different people from different households, and needing to talk with them, you are correct that the two aren’t comparable.

      Retail shopping is far more dangerous than in-home activities, rather than being merely “comparable”.

      So there’s no rational way you can ever justify allowing something in the retail space that you don’t allow at home

      1. Of course, your analysis is based on your opinion. Other analyses might reach a different conclusion (I am not in the least persuaded there isn’t a rational basis for reaching a different conclusion than you did; see for example Kagan’s dissent). The big unanswered question is who has the burden to demonstrate what is or is not comparable. If the state has a strict scrutiny burden to show two activities are not comparable, Smith is a dead letter.

        1. Seeing as how laws that impede fundamental constitutional rights or involve suspect classifications typically require strict scrutiny…

          And these orders do BOTH….

          It’s not surprising that strict scrutiny should be applied.

          1. You described a Fourteenth Amendment due process or equal protection analysis. This ruling mentions neither of those.

            1. This order/law impeded fundamental constitutional rights. Freedom of Religion.

              It also can be interpreted to affect suspect classifications.

              1. You (as usual) are begging the question that the order was not neutral, which in this case begs the question whether retail shopping is comparable to in-home Bible study. That determination needs to be made before concluding a fundamental right was impeded.

                1. You’ve got it backwards. Even supposedly “neutral” orders can easily impede fundamental rights.

                  You start with the question of “does it impede a fundamental right” like the right to freely worship in your own house of worship. THEN you apply strict scrutiny to it.

                  1. You described the doctrine between Sherbert v. Verner (1963) and Employment Division v. Smith (1990). I described the current doctrine.

                    1. Your version is just a religious version of Plessy v Ferguson. A way to legally discriminate against religious by using “neutral” or “equal” laws.

                      Luckily those states and the nation as a whole who actually choose to defend religious freedom almost instantly overturned it.

    3. I don’t know what the correct legal ruling is. However, reading Kagan’s dissent, questions about the government’s drafting come to my mind.

      With respect to this

      “when people gather in social settings, their in-teractions are likely to be longer than they would be in a commercial setting,” with participants “more likely to be in-volved in prolonged conversations.”

      Interactions can be quite long in commercial settings. A cut, color along with manicure and pedicure can take quite a bit of time. In the concern was length of interaction, I would think the law should limit the amount of time a customer can remain inside a commercial venue. This would make more sense than thinking about how “likely” it is the people will interact for a prolonged time.

      The exact same time restriction could apply in public and private.

      Second, “private houses are typically smaller and less ven-tilated than commercial establishments.”

      This varies drastically depending on the private house and commercial establishment. Also: private homes nearly always have windows. Merely requiring places to open windows during a meeting might very well result in the private home having better ventilation than the dining are of restaurants or the shopping are of small to medium sized shops.
      Also: if the concern is ventillation, they should have some requirement for fresh air intake (3 volumes of turn over per hour?). Or some requirement on filtration. Or some requirement on monitoring in businesses. I suspect they don’t.

      And third, “social distancing and mask-wearing are less likely in pri-vate settings and enforcement is more difficult.”

      Perhaps. But I imagine mask wearing is just as unlikely when people are dining in restaurants as in a private setting. Besides this, there are private settings and private setting. I might not want to wear a mask visiting my mother alone in her 5 bedroom house. I would wear on for a religious meeting with 5 families. (That assumes I went to such a meeting, which I would not because I’m agnostic!)

      These “reasons” for why it Covid might transfer inside a home sound pretty speculative to me. Moreover, the law wasn’t drafted to really address these reason so they are limited in public places. It all seems to rest on “generally”. So a stuffy shop with on entrance and one delivery exit, windows that can’t open and some old fashioned HVAC system is somehow assumed more venitillated than a private home. Unlikely.

      1. Interactions can be quite long in commercial settings.

        Indeed. I recall being in a business meeting for more than 24 hours (with bathroom breaks.) I can’t recall a social interaction approaching that.

        And anyone working in a room shared with other people – shop, office etc – will likely be sharing their company for seven or eight hours at a time.

      2. Perhaps. But should courts be engaging in such analysis that second guesses the elected branches?

        1. Isn’t “the elected branch” simply one of two parties to the case ? If the other party thinks the elected branch should be second guessed, wouldn’t the court normally have to form an opinion on which party had made the better case, on whatever standard of proof is required by the law ?

          In this case, there seems to be an argument about what is comparable to what. Why would the elected government get a thumb on the scale here ?

          1. If courts are the right venue to make these judgements, then what prevents them from second-guessing all matter of laws in the way substantive due process and fundamental rights argue they should? In conservative terminology, that would be legislating from the bench.

            1. I don’t get the alleged connection with substantive due process, which seems to involve the judicial discovery of items not explicitly mentioned in the Constitution. Thus Party A (not the government) argues that Ephemeral Right X exists, hidden in the Constitution, while Party B (the government) argues that it does not, being unmentioned there. The jurisprudential reason for objecting to such judicial discoveries is that they involve the judiciary inventing things from thin air. It has nothing to do with granting deference to the government.

              But what we have here is a dispute about whether P is similar to Q, which is a straightforward factual dispute (or inference from the facts dispute) on which the courts opine all the time. Why would the government get deference on such a question ?

              1. I disagree that whether P is similar to Q is a straightforward decision based on the facts. To the contrary as illustrated by this case, people take the side that leads to their desired outcome. Thus, the supposed factual dispute is just a proxy for the original claim that liberty is improperly being limited. As As Eugene said in his Fulton brief

                whether two kinds of conduct should be treated alike calls for the same sort of normative and practical judgment about government interests (and rival private interests) that is called for by the decision about whether certain conduct should be restricted.

                That is, the courts are substituting their judgments for the elected branches in a manner similar to when they do so for asserted fundamental rights.

                1. What you argue for is just another Plessy v Ferguson – type logic. “Separate but equal”. And you see how well that worked…

                  1. Plessy endorsed intentional separation so long as it was equal. Smith rejects that doctrine.

                    1. The Smith doctrine is consistent with Washington v. Davis (1976), where the Court held

                      it does not follow that a law or other official act is unconstitutional solely because it has a racially disproportionate impact.

        2. “Branches?” Did both the legistlature and executive make these rules? Or is it by the executive alone? (I honestly don’t know.)

          Also: the answer to your question is:

          “Yes. The courts should sometimes second guess the elected branches. They should do so when the elected branches violate the constitution including when the violate constitutional rights of the populace.”

          1. The amount of question begging in this debate is astonishing.

            1. What question do you think is being begged here ? Do you really think lucia’s statement of when the courts should second guess the elected branches is wrong ?

              I imagine not. I suspect you merely doubt that this case is such a case. But that doesn’t alter the fact that lucia’s statement is constitutionally unimpeachable. The courts are, and should be, very much in the business of second guessing the elected branches.

              But they should obviously do it consistently with the rule of law – ie when the elected branches have indeed overstepped their marks, and not simply when the judge feels he would like one answer better than another, and plucks an extra bit of constitution from his rear end to provide justification.

              1. lucia is begging the question that a constitutional right has been violated. That doesn’t tell us anything, one way or the other, about how much deference the government should get in making that determination.

                1. No, she’s saying that it is definitely the court’s job to decide whether a constitutional right has been violated.

                  And I remain baffled by your suggestion that the judicial branch should defer to the executive (or legislative) branch on the question of whether a constitutional right has been violated.

                  Well, Judge, we’ve decided here at the po-lice department that this here was a lawful search, so you don’t need to trouble your pretty lil’head about it. Let’s get this over now, and get to the bar.

                  1. Of course it’s the courts’ job to decide whether a constitutional right has been violated and I am not saying the judicial branch should defer to the elected branches on whether a constitutional right has been violated.

                    I am saying that the burden should belong to the plaintiffs to show that regulated religious conduct is comparable to unregulated secular conduct. Note, this statement is not necessarily as strong as Eugene’s position that the only time the plaintiffs should prevail on this threshold question is when the regulation is based on the conduct being religious.

                    1. Well, I’m glad we’re seeing eye to eye on the basics.

                      However on the detail it seems to me that in a case such as this, the burden should be on the religious plaintiffs to demonstrate that the free exercise of their religion has been monkeyed with, and then the burden should be on the government to demonstrate that the monkeying satisfies strict scrutiny.

                      And as for these burdens, they do not seem to me to be cases of deference. The court does not defer to one party or the other, it decides (or should decide) each question that it needs to decide with perfectly even scales. It is simply that to win its case, each party may have slightly different points to prove.

                      If you absolutely must have a thumb on the scale, in a Republic which is founded on an unalienable Right to Liberty, then I should have thought the thumb ought to be deployed the government when it seeks to restrict liberty.

                    2. That s/b :

                      I should have thought the thumb ought to be deployed AGAINST the government when it seeks to restrict liberty.

                    3. the burden should be on the religious plaintiffs to demonstrate that the free exercise of their religion has been monkeyed with, and then the burden should be on the government to demonstrate that the monkeying satisfies strict scrutiny

                      You have more or less restated the Verner doctrine. For reasons Eugene detailed in his Fulton brief, the Smith doctrine should instead be appplied.

                  2. Lee Moore,
                    Yes. I answered the question he asked which was “Perhaps. But should courts be engaging in such analysis that second guesses the elected branches?”
                    The answer is clearly yes. The courts role is to second guess the elected branches on constitutional matters.
                    JoshR

                    I am saying that the burden should belong to the plaintiffs to show that regulated religious conduct is comparable to unregulated secular conduct.

                    Well, perhaps that was the thought in your head when you wrote a very specific question. But I answered the question you actually posed. It was not a claim about “burdens”.

                    1. Lee Moore:
                      For the record, I’ve made no claim and advanced no opinion on whether the California government actually violated anyone’s right. I brought up questions about whether it was actually true that ventilation is better in commercial buildings that private buildings, whether interactions actually are longer in private than commercial settings and whether mask wearing actually is less likely in a home gathering rather than a commercial one.

                      The facts surrounding these questions were brought up by the 9th circuit and Kagan. But it’s not at all clear to me that the 9th circuit or the CA government side of the case actually favor the 9th circuit ruling.

                    2. The question posed was (emphasis added), “should courts be engaging in such analysis that second guesses the elected branches?” “Such analysis” referred to the ease of COVID transfer in different settings that you first commented on where the state claimed one thing and the plaintiff another. So, the question is about whether the plaintiff ought to bear the burden of their claim.

        3. If citizens sue each other or governments, there is no other body empowered by the constitution to render decisions.

          So yes, the courts should be engaging in such analysis and decision making.

          1. The fact the citizens can sue the government and courts render decisions does not inform us, one way or the other, whether in the course of rendering those decisions either party should be given deference.

          2. Josh R

            The question posed was (emphasis added), “should courts be engaging in such analysis that second guesses the elected branches?” “Such analysis” referred to the ease of COVID transfer in different settings that you first commented on where the state claimed one thing and the plaintiff another. So, the question is about whether the plaintiff ought to bear the burden of their claim.

            Well, clearly, the 9th circuit, the district court and Kagan all thought they should engage in “such” analysis. So did the state of California who advanced the argument. In fact, they all did engage in it and no one suggested the court shouldn’t engage in that sort of thing.

            Besides the fact that there seems to be near universal agreement the court should engage in it, whether the court should engage in this analysis and who should bear the burden of proof when the court does engage in the analysis is a separate questions. So if you think asking whether the court should engage in the analysis at all is the same as discussing who should bear the burden, you are seriously mistaken.

            1. I use “engaging the analysis” to mean doing something more than accepting a reasonable explanation from the government that is not thoroughly refuted by the plaintiff.

              1. One problem is that the explanation provided by the government appears unreasonable in a way that ought to be obvious to people who know anything about ventillation, HVAC or typical architectural features (like the existance of windows on homes.)

                I suspect the main reason the plaintiff did not rebut the claim that private residences are less ventilated than public buildings is that it clearly irrelevant to their request to do bible reading outdoors. I would think a judge could notice that the relevant ventilation of indoor venues is not relevant to evaluating requests to do something outdoors.

      3. ““when people gather in social settings, their in-teractions are likely to be longer than they would be in a commercial setting,” ”
        good point lucia.
        The long interaction could be thought of as roughly 10 minutes. That is plenty of time for a uninfected person to incept 100,000 virions at a few feet, making for 20% -50% chance of infection.
        And you’re correct, many commercial interactions take that long.

        1. That is plenty of time for a uninfected person to incept 100,000 virions at a few feet, making for 20% -50% chance of infection.

          Speak confidently, and sprinkle in enough numbers and $20 words to make people think you must know what you’re talking about. LOL

          1. Which are the $20 words? uninfected? Infection? Time?

            1. uninfected? Infection? Time?

              If those truly are the words in that post you’d be least likely to use in cocktail conversation, you’ll doubtless be right at home with Donny Someone.

              1. I’ve used all those words except “incept” (which evidently means “graduate from a university with an academic degree.”) I assume it’s an typo and the writer meant to write “intercept”.
                Honestly, I find it difficult to believe you think “time” is a $20 word.

                Yes, I’ve used “virion” and would use it at a cocktail party if I were discussing airborne transmission of a viral disease. That’s the word. I see no reason to call it a “what’s the word? thing-a-gigie?”

                But perhaps you’ll insinuate “airborne”, “transmission”, “viral”, “disease” or “someone” are $20 words to distract from the fact that you prefer not to engage with substance.

                1. Lucia,
                  I should have written intercept

                  1. I should have written intercept

                    Oh, this is just getting better and better. You’re now trying to pass it off as a typo, apparently not realizing that “incept” means to take in; ingest — somehow perfectly appropriate in the context of the sentence.

                    I guess that’s one downside to cutting and pasting bullshit you yourself don’t understand.

                    1. No Brian it is not ingest. The process is for virions to be absorbed by the mucosal tissues in the eyes, nose and mouth. They arrive by the aerosol intercepting those tissues directly or by you transfering them to those tissues with your contaminated hands.

                      Laugh if you will. Fortunately Your opinions are irrelevant to what your betters will do to suppress the pandemic

                  2. That’s what I automatically read it as. After all, it’s precisely the word one uses when modeling transport of contaminants that would then be intercepted by a ‘sink’ like a person, wall and so on. Typos happen.

              2. Brian,
                Do you know what a virion is?
                Do you know how aerosols spread, do you know about the inverse square law. Do you know what a priori probability is?
                If not, leave the conversation to your betters

          2. Brian,
            You actually no nothing about aerosol transmission and what it takes to get infected.
            But don’t worry. Go to sleep tonight and dream about the Orange Clown. He uses 4th grade language ; so, you’ll understand.

            1. You actually no nothing

              How ironic.

              Go to sleep tonight and dream about the Orange Clown.

              Ah, here’s a perfect example of the general intellectual level of material you write yourself instead of cribbing from others.

      4. ” if the concern is ventillation, ”
        in fact MIT has studied quantitatively and experimentally the requisite amount of ventilation to clear the air indoors . Essentially no commercial or residential spaces have sufficient ventilation and filtration if the space per person is less than 150 sq. ft.

        1. Don Nico,
          Do you have the link to the MIT study? I’d be interested in reading that.

          Get this (from a previous post:

          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.

          In that context, this by the 9th circuit is idiotic:

          Second, “private houses are typically smaller and less ven-tilated than commercial establishments.”

          So what?! Evidently the plaintiffs weren’t asking to meet inside a private house but in a backyard! It’s pretty hard to believe any indoor commercial establishment is better ventilated than a backyard! (Kagan seems to be impressed that the plantiffs didn’t argue with the prosecutions contention that commercial buildings were better ventitilated than homes. Of course the plaintiffs aren’t going to bother to argue about whether ventilation inside a house is better or worse than inside a commercial building. Which is better ventilated is totally irrelevant: if they wanted to meet outside! )

        2. Essentially no commercial or residential spaces have sufficient ventilation and filtration if the space per person is less than 150 sq. ft.

          Every ventilation equation uses cfm. Cubic Feet per Minute. A blower will move X cfm per minute, so total air exchange= total cubic feet/cfm. So square footage is a meaningless measurement. And a smaller area would be easier to change all the air, than a larger area. Assuming equal depths.
          This has become the ignorant led by the stupid.

          1. iowantwo,
            The reason I want to read the MIT study is to see what they looked at. Homes generally have certain fans in their HVAC systems. Depending on construction, they generally have a certain level of natural infiltration when windows are closed and of course much more when they are open. (And, of course, you can put a window in the fan.)

            It’s plausible MIT looked at some range of numbers. I would want to know what the 150 sq ft room limit is supposed to mean. (Maybe the time to reach some critical concentration of virions when the room contains 1 infected individual and has with “standard” ventillation? ) It would be nice to read and article.

            I’m pretty sure if I had a house and some metering equipment, I could find an exhaust fan large enough to keep the steady state concentrations of virons low.

      5. This regulation, purportedly “neutral,” because purportedly based on the supposed greater likelihood that the homes in which the group religious studies will take place will be ill-ventilated, reminds me of the racist anti-Chinese San Francisco ordinance struck down in Yick Wo v. Hopkins, 118 US 356 (1886). The case is not on all fours, but rarely are two Supreme Court cases on all fours with each other. That San Francisco laundry ordinance was purportedly neutral, “fair on its face and impartial in appearance.” It provided the city supervisors with the power to grant or withhold permits to keep and conduct commercial laundries in city buildings. It only applied to wooden buildings. That was supposedly for the neutral reason that, well, laundries are more dangerous in wooden buildings. And they were–just like most things are more dangerous in wooden buildings. Yet everyone knew the law–with its confinement to wooden buildings, and its standardless discretion–was actually designed to operate as a virtual ban on specifically Chinese laundries, because they disproportionately lived and operated their businesses in the city’s wooden buildings. And wouldn’t you know it, that was the actual effect of the law. And the Supreme Court–in 1886!–struck it down, “[t]hough the law itself be fair on its face and impartial in appearance,” because it was discriminatory. The Court, mindful of its audience, chose to mostly emphasize the city supervisors’ discretion being too broad. But really, everyone knew that the Court was influenced by the fact that in operation the law was racially discriminatory.

        Good thing there were still enough Reconstruction-era Republican appointees on the Court to form an unassailable majority in Yick Wo. The Supreme Court of 1886 was still like the forward-thinking Court of Rail Road Co. v. Brown, 84 U.S. 445 (1873). It had not yet been transformed by Democrat appointments into the cracker court of Plessy v. Ferguson, doing handstands to get around its post-Civil War non-racist precedents like the 1873 decision in Brown.

    4. “If the state has a strict scrutiny burden to show two activities are not comparable, Smith is a dead letter.”

      The State has such a burden

      If Smith is now dead, i will weep no tears for it

  20. I would deny the application largely for the reasons stated in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021) (KAGAN, J., dissenting).

    Isn’t this a bigger story than the actual result ? is Kagan abdicating as Queen of Stare Decisis ?

    1. I don’t think interlocutory orders are normally binding on the same court in the future.

  21. Josh, your comment that you think Roberts seems likely to retire based on this order is interesting. I doubt Roberts is thinking of retiring. But my takeaway is that Kavanaugh is making a bid to be a leading justice, if not the swing justice.

    I’m almost positive Kavanaugh wrote this order. The writing is spare and muscular. It sounds a lot like his previous writings, including D.C. CIrcuit dissents. It sounds nothing like Gorsuch’s odd purple prose. Barrett wouldn’t write an order in this situation. And neither Thomas nor Alito like to be this blunt: neither is a shrinking violet but usually they both simply have a more roundabout writing style. And (as you point out) the very first paragraph crisply adopts a prior Kavanaugh concurrence as majority law.

    I read this order in combination with Kavanaugh’s opinion for the court just a week and a half ago in FCC v. Prometheus Radio Project. That opinion really did a power move that almost no one has noticed. This decision (which, again, is spare and muscular) wastes no time unanimously knocking down a challenge to FCC rulemaking. Might sound boring. But this opinion really didn’t mess around. And importantly, it crisply, simply, but aggressively made what I can only characterize as a restatement of the standard of review for whether agency action is “arbitrary and capricious,” which is a question that constantly arises across administrative law. Kavanaugh simply announces a simply, tightly-worded, new standard for arbitrary-and-capricious review, without any fuss, and without saying he is rewriting the standard: “On this record, we conclude that the FCC’s 2017 order was reasonable and reasonably explained for purposes of the APA’s deferential arbitrary-and-capricious standard…. The APA’s arbitrary-and-capricious standard requries that agency action be reasonable and reasonably explained. Judicial review under that standard is deferential, and a court may not substitute its own policy judgment for that of the agency. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.” He supports this tight restatement of the standard with a string cite to three prior decisions, without any parentheticals, and without quoting a single word from a prior decision. I offer no view on whether this is a workable restatement of the standard. It’s catchy (“reasonable and reasonably explained”). A cleanup of the Court’s decisions in this area was badly needed. Time will tell whether it is workable. But in my view it is a big deal in administrative law. It is the work of a confident justice, confidently flexing his muscle. And to me it sounds a lot like this order. Even though this is written much more hastily.

    That is not all. Lately, as Kavanaugh goes, so goes the Court. Look at the cases where cert has been denied recently. Kavanaugh has functionally been the swing justice on most of them. That goes back to at least the post-election cases.

    Kavanaugh is the logical new justice to bid for such a role on the new Ginsburg-less Court. Like Kagan he is smart, has prior political experience, and is not above doing a political instead of judicial thing. I thought he really grew as a judicial mind while serving on the Circuit. He may revert to being a more political actor now. For better or worse, these cases suggest to me he is making his move.

    By the way, I’m also almost positive that the draft majority opinion originally read, “It is unsurprising that such litigants are entitled to relief. It is surprising that the Ninth Circuit did not grant such relief.” And Kavanaugh was then prevailed upon (or himself decided) to delete the second sentence.

    1. Just about anything that brings us closer to enlargement of the Court is a good thing.

      1. I’ll remember that when we have our next Republican President and Republican Senate

        1. We may not have a Republican president until conservatives ditch the multifaceted bigotry, belligerent ignorance, and backwater superstition from their party. Democratic registration and affiliation are on a roll, particularly in the modern, successful, reasoning communities that have left the desolate backwaters behind. It is becoming difficult for some Americans to recall more than one time the Republicans have been able to get as many votes as the Democrats in a national election.

          Your party must change or die, clingers.

          I vote “die,” unless Republicans eject the racists, misogynists, gay-bashers, xenophobes from their ranks — and their platform.

          1. The first people to eject are some of the wankers who post Orange Clown BS in this blog

            1. A worthy sentiment, but the Republican Party seems to be resisting it strenuously. It is beginning to seem reasonable to expect sensible, decent Republicans — and many corporate, establishment donors — to abandon the party before the party turns away from Trump.

  22. Perhaps California should be subject to preclearance for any laws that may impede upon religion, or which may bias against religion. They’ve clearly shown repeated bias against religion, akin to the bias certain southern states demonstrated against race in the 1950s.

    1. It’s ludicrous to think these are motivated by a bias against religion, the height of deluded victimizationhood thinking. No major politician anywhere is looking to take a punch at religion because religion in general is quite and fervently popular in all parts of this country.

      A much more likely explanation is that you have a state health system dealing with a novel heal problem that we’re still coming to understand trying to combat it with some fairly ambiguous guidance from SCOTUS.

      1. “It’s ludicrous to think these are motivated by a bias against religion, you stupid paranoid bigots!”

        I don’t think that proves what you think it proves

        1. Don’t project you sloppy fallacies of generalization onto me Greg.

      2. It’s been here for over a year.

        It’s NOT a “novel health problem” any more.

        Which is part of the point. Executives who just flap around, doing whatever strikes their fancy, is not a reasonable way to do government.

        It’s about time the Us Supreme Court started slapping down these tin pot dictators with delusions of grandeur.

        1. ” It’s NOT a “novel health problem” any more. ”

          Not a lawyer.

          Not a doctor.

          Not an epidemiologist.

          Just a clinger awaiting replacement.

          1. So long as it’s morons like you attempting to do the replacement, i’m safe

            1. Are you one of the particularly daft clingers who do not recognize that your betters have been shoving progress down conservatives’ throats for a half-century, and have won the culture war?

              You figure school prayer, criminalized abortion, official gay-bashing, creationism, pollute-at-will laws, the war on doobies, segregated schools, graduate schools that exclude women, and the requirement that Black men lower their gaze in the company of White women are ready for a comeback in America?

              Instead, you will continue to comply with the preferences of your betters. I expect reason, inclusiveness, science, modernity, education, tolerance, and progress to continue to prevail against superstition, ignorance, backwardness, dogma, bigotry, insularity, and pining for illusory ‘good old days.’

              Carry on, clingers . . .

        2. For natural phenomena an existence of little over a year is quite novel.

          1. It’s SARS-Covid 19, because there’s many other such viruses.

            Viruses aren’t new, SARS isn’t new, human respiratory viruses aren’t new

            Your total ignorance and / or dishonesty aren’t new, either.

            All of them are sad, none are new

            1. Greg,
              Your response is such BS, in gross contradiction to a huge amount of biomedical research that one can only assume that you rejoice in reckless disregard for the truth and boldfaced lies.
              But just to be pedantic the virus is SARS-CoV-2 not SARS-COVID 19. The disease is COVID-19. The rest of your comments are irrelevancies.

        3. “It’s NOT a “novel health problem” any more.”
          I’ll grant you the lack of novelty, but it is far worse than a problem.
          The SARS-CoV-2 pandemic has been a nightmare for 32 million American and a death sentence for 570,000 Americans.
          It also has sapped any residual intelligence from most of the 70 million who voted for the Orange Clown

        4. “tin pot dictators with delusions of grandeur.”
          Wow. If I ever read a description of the Orange Clown, that is it.
          By the way, the US Courts started slapping down the Ornage Clown within weeks of his taking office.
          But you probably slept through that.

          1. Yes, I’m away that black robed thugs started attacking President Trump’s legitimate orders almost immediately

            I’m also aware that he let them do so

            Which makes calling him a “dictator” a since of sever stupidity / dishonesty on your part

      3. ““We’re now having issues in the Orthodox Jewish community in New York, where because of their religious practices, etc., we’re seeing a spread,” Cuomo said.”

        Sure…it’s “Ludicrous”.

        Over and over and over again, restrictions targeted and specifically enforced against religious assembly and religious peoples by liberal politicians.

        How many times to you have to see it? How many times does it need to occur before the religiously bigoted biases become so apparent that it is REQUIRED for these officials to need preclearance before their bigoted enforcement priorities occur, yet again!

        1. While countless thousands of infected illegal aliens nonchalantly wander in.

          1. That is the lest of the problems concerning COVID.
            Moreover, you need those illegal entries to pay for your Social Security benefits.

        2. What’s hostile about that quote? There was certainly reports of high rates of spread in some Orthodox Jewish neighborhoods and of defiance of health orders by members engaging in religious activity. Saying so is somehow hostility?

          1. And then selective laws that always seem to disfavor religion and religious activity, while commercial or other activities are relatively untouched?

            Yes. It’s bias against religion. Repeatedly. Over and over and over again.

            Imagine if the Pennsylvania and Wisconsin decided to “limit” in person voting in cities, due to the higher relative spread of COVID there, compared to those rural areas in 2020. Rural areas are untouched. You would be off your rocker screaming about bias.

            It’s time for any further laws or orders that might impair religion to be subject to preclearance in these states that would impose religious burdens. California and New York most prominantly. There is clear bigoted bias.

      4. It’s ludicrous to think these are motivated by a bias against religion, the height of deluded victimizationhood thinking

        No it isn’t. There’s a long history of lefty hatred of religion – the French Revolution, the Bolsheviks and all their rancid offspring, Spanish Civil War etc. God is a rival deity. Thou shalt have no other Gods before me.

        However, there’s another feature in the American context, which is the explicit mention of religion in the 1st Amendment. This is a stone in the shoe of anyone, right or left, whose political leanings are, if not totalitarian, then at least quitealotarian.

        For if you have an exempted class, whether it be the religious, the nobility, the pure blooded, the whatever, then the chains are all the more resented by the non exempt. Any kind of heterodoxy is a threat – it may breed calls for chain loosening even from the non exempt.

        There must be no exceptions, everyone must join our club – else folk might wonder whether they like being members. C’mon man, this is obvious – what was the Berlin Wall for ?

        To a quitealotarian any exception presents the middle finger to the authority of the ruler. It’s lèse-majesté.

      5. “…religion in general is quite and fervently popular in all parts of this country.”

        You may have missed the recent survey that indicates that fewer than half the population are members of a church. (https://news.gallup.com/poll/341963/church-membership-falls-below-majority-first-time.aspx). More than half of Republicans are members of a church. Fewer than half of Democrats and Independents report church membership. It is likely that politicians who are not trying to appeal to Republicans, and who must appeal to a radicalized base, may be more inclined to “take a punch at religion”. California’s ruling party politicians, such as Gov. Newsom, fit that description.

        I’m not saying that Gov. Newsom’s health orders are motivated by religious animus, since I cannot read his mind, but I would not rule it out as a possibility.

  23. God bless and keep Neil Gorsuch, best and most effective defender of individual rights in the entire federal government.

  24. I’m not so worried about the substance of the opinion. There are practical limits to this Free Exercise expansion.

    But the activism! The overruling of the Smith-Lakumi line via the shadow docket, and ignoring mootness.

    That radical departure from procedure does not bode well.

    1. “ignoring mootness.”

      Sorry. This is literally the definition of capable of repetition, yet evading review, since it has happened so many times.

      When the state “suddenly” changes the law, each and every time, “just” before SCOTUS review? No.

      Can you image if abortion law was treated like this? Texas could ban abortion. Just totally. Then, just before a court case came up “Nope, it’s legal now”. Court dismisses. Then… “Ban abortion again!”.

      1. The ‘capable of repitition, yet avoiding review’ line, was that one traditionally invoked by conservative or liberal justices on the Court?

        1. When “liberals” seek to impede constitutional rights, by passing laws and orders which strip them from our citizens, it’s up to the SCOTUS to defend those rights.

          When court games are played to attempt to limit the ability of the SCOTUS by suddenly changing the law last second to avoid review, it’s up to the SCOTUS to recognize this

          1. There is no evidence of game playing, just your speculation.

            1. Please. For a state to defend its position through all the court cases, then “suddenly” change the law just before the SCOTUS?

              That’s game playing.

              1. Until they change it back, you’re just making stuff up.

      2. It has not been repeated across the nation even once. Plus the political price. See also gun control.

        Fan fiction about evil libs is not evidence.

          1. How was this mooted and then unmooted?

    2. this Free Exercise expansion.

      Expansion? Good lord. Reminds me of when a smaller increase than desired suddenly became known as a “cut.”

      1. I accurately described what is happening.

  25. “Lower courts are now on notice.”

    So the previous four times didn’t do it, but this one did?

  26. Not knowing shadow docket per curiam procedure or Inside Baseball, I’m assuming Thomas, J. assigned it to someone who did a paste job of the rules from the three least senior Justices to keep them from writing separately. Which would indicate laudable centripetal efforts being made by folks other than the chap in the center chair (who seems increasingly to be a target of this blog).

    Mr. D.

  27. The paragraph beginning, “The most important…” has a crucial “than” where it should have a “then.”

  28. I think the religion clauses require a robist interpretation of free exercise.

    But I agree with Chief Justice Roberts that the Court should not set major precedents on the shadow docket without the benefit of full briefing and oral argument.

    And it certainly shouldn’t create an impression that its Justices started writing opinions before the briefs were even filed.

    The Court should not create an impression that political appointees are rushing to implement the agenda of the person who appointed them.

  29. Also, not Chief Justice Roberts? THE CHIEF JUSTICE?

    Old times!

    Wonder if he will continue to pull out the THE CHIEF JUSTICE language when he wants to make a point.

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