The Volokh Conspiracy
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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.