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Symposium: Coronavirus litigation lurks in the shadows

This article is part of a symposium on the Supreme Court’s shadow docket.

Stephen Wermiel writes the “SCOTUS for law students” column for SCOTUSblog. He is a professor of practice at American University Washington College of Law, where he teaches constitutional law and a seminar on the Supreme Court.

The Supreme Court has been wrestling with a steady stream of legal issues related to the coronavirus pandemic, all in the form of emergency applications decided without full briefing or oral argument.

These cases, involving restrictions on religious gatherings and other aspects of state stay-at-home orders, exposure of prisoners to COVID-19, the census deadline, and access to medical abortions, are part of the Supreme Court’s shadow docket. And as with many of the court’s shadow docket decisions, the emergency rulings by the justices in the cases arising from the pandemic have had immediate and substantial practical impact. (An additional category of COVID-19 emergency applications involving election issues is explored in another article in this symposium.)

The cases are significant not only for their practical effects but also because they have divided the court along ideological lines while eliciting strong sentiments from the justices. Since mid-May, the justices have produced 45 pages of opinions reflecting their divisions over granting or denying emergency applications in COVID-19 cases about religious worship and prisoner treatment. And in two other cases arising from the pandemic, justices wrote an additional 12 pages on the census deadline and a pill used to induce early-term abortions. That volume of opinion-writing is unusual for the shadow docket, where written dissents are rare and orders typically are one-sentence long, with no indication of the court’s reasoning.

Religious gatherings

Three emergency applications have involved claims by churches of unfair treatment by governors who issued orders restricting public meetings and crowd sizes to curb the spread of the virus.

In the case that produced the strongest reaction among the justices, Calvary Chapel of Dayton Valley in rural northern Nevada challenged an order by Gov. Steve Sisolak (D) limiting church services to 50 people at one time while permitting casinos and various other businesses to operate at 50% of their capacity. The church argued that the order violated the First Amendment’s free exercise clause by treating Nevada casinos more favorably than churches, and it sought a preliminary injunction allowing it to hold in-person worship services with 90 people, or about 50% of its capacity.

A federal district court in Nevada and the U.S. Court of Appeals for the 9th Circuit declined to block the governor’s order. When the church came to the Supreme Court for emergency relief in July, the justices also declined to issue an injunction, leaving the governor’s order intact while the litigation continues in the lower courts. Chief Justice John Roberts joined the court’s more liberal members — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – to rule against the church, and the five-justice majority provided no explanation for the ruling. But the justices in the court’s more conservative wing — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – loudly dissented. In three separate dissenting opinions totaling 24 pages, they argued that the Nevada order unconstitutionally discriminates against religious freedom and should be blocked.

The Nevada case was similar to an earlier shadow-docket case from the neighboring state of California. On May 29, the Supreme Court denied relief, by the same 5-4 vote, to the South Bay United Pentecostal Church, which is located south of San Diego. The church claimed that stay-at-home orders by California Gov. Gavin Newsom (D) treated religious institutions unfairly by limiting them to the lesser of 25% of capacity or 100 people, while some other institutions were not subject to the same limits. The church noted that the rule interfered with its ability to celebrate Pentecost Sunday on May 31. Both a federal district court in California and the 9th Circuit refused any preliminary relief for the church, and the Supreme Court agreed.

As in the Nevada case, the five-justice majority did not explain the court’s reasoning, but this time, Roberts attached a short concurrence that provided some insight into his own thinking. He wrote that he believed the California order treated churches the same as “comparable secular gatherings” such as concerts and movie showings. His three-page opinion was matched by a three-page dissent from Kavanaugh that was joined by Thomas and Gorsuch.

On the same day as the California ruling, the court also denied emergency relief to a pair of Chicago churches that challenged Illinois’ stay-at-home policy. That denial had no recorded dissents, and the court noted in a two-paragraph order that Illinois was in the process of revising its order and that the churches could return to the court “if circumstances warrant.”

Prisoner safety

The treatment of inmates in prisons and jails during the pandemic has generated a number of emergency cases as well.

In a shadow docket ruling on Aug. 5, the Supreme Court voted 5-4 to temporarily lift an injunction issued by a federal district court in California that would have required more extensive and effective measures in an Orange County jail to protect inmates from exposure to COVID-19. The 9th Circuit twice refused to block the injunction, but the Supreme Court stepped in and did just that, pending further appeals. The justices again split 5-4, but this time Roberts joined the conservatives. As is the pattern in these cases, the majority did not offer any explanation for blocking the remedies ordered by the district court. Among the dissenters, Breyer and Kagan simply noted that they would have left the remedies in place, while Sotomayor wrote a critical eight-page dissent that Ginsburg joined.

In another prison case, Sotomayor on June 4 temporarily blocked lower court orders that would have required the federal prison in Elkton, Ohio, to transfer inmates either to other institutions or to home confinement to get them out of harm’s way from the virus. Without written explanation and without referring the matter to the full Supreme Court, Sotomayor froze the orders while the government appealed to the U.S. Court of Appeals for the 6th Circuit, over which she has supervisory authority for emergency applications.

On May 29, the same day as the California and Chicago church rulings, the court refused to reinstate a district court’s injunction that had ordered the Rayburn Correctional Center in Louisiana to provide greater protection against COVID-19 for an inmate with diabetes. The U.S. Court of Appeals for the 5th Circuit had blocked the district court’s action, and the Supreme Court, without written opinion or recorded vote, declined to change that outcome.

The 5th Circuit also blocked a district court’s order requiring improved COVID-19 protections at a Texas prison housing geriatric inmates. The appeals court found that the lawsuit was premature because the inmates had filed it before pursuing administrative solutions under a federal statute. On May 14, the Supreme Court refused to disturb the 5th Circuit’s ruling. The court did not explain the decision, and there were no noted dissents. But Sotomayor, joined by Ginsburg, wrote a seven-page opinion reaffirming the duty of federal courts to protect inmates from indifference to major health threats.

Business closures

Another category of coronavirus-related policies – state orders forcing businesses to close temporarily — has occupied lower federal and state courts but has had limited appearance at the Supreme Court. On May 6, the justices declined to interfere with a Pennsylvania Supreme Court ruling that upheld business-closure orders by Gov. Tom Wolf (D). The orders were challenged by a political candidate and several businesses as unconstitutional takings of property and other rights violations. The court’s denial of emergency relief in May came in a one-sentence order with no explanation or separate opinions. And on Oct. 5, the court denied a pending cert petition in the case as well, again without written explanation.

Also on Oct. 5, the justices declined to hear a challenge to stay-at-home orders issued by Virginia Gov. Ralph Northam (D). The court turned down the cert petition without any comment.

Federal policies

More recently, the court handled emergency applications in two controversial cases involving federal plans and policies affected by COVID-19.

The pandemic figured prominently in a fight over how long the 2020 census count should last. Earlier this year, the Census Bureau said that because of COVID-19 it would require more data-collection time to report the results of the census to the president by the legally required deadline of Dec. 31. The bureau initially proposed a deadline of Oct. 31 to finish collecting questionnaires and move to the “post processing” phase. But Commerce Secretary Wilbur Ross, in whose department the Census Bureau operates, later said the counting needed to end sooner, on Sept. 30, to meet the Dec. 31 deadline.

A coalition of civil rights groups and local governments filed suit, arguing that stopping the count before it was finished would undercount minorities, disadvantaging the cities and towns where they reside. A federal district judge in California issued an injunction restoring the Oct. 31 deadline and ordering the counting to continue irrespective of the end-of-year deadline. A panel of judges on the 9th Circuit agreed that the count should continue through October but said census officials should still submit results by Dec. 31.

The Commerce Department asked for emergency relief from the Supreme Court, and on Oct. 13, the justices issued an order allowing the census count to end, which it did two days later. Sotomayor dissented from the order. In her seven-page opinion, she said it was “understandable” that COVID-19 created challenges for the census, but that did not excuse the bureau’s “abrupt shift in focus from achieving an accurate count to meeting its deadline at all costs.” Without hearing argument or receiving full briefing, the Supreme Court effectively ended the 2020 census.

In the other recent case, by postponing emergency action, the justices effectively left in place an injunction issued by a federal district judge in Maryland blocking the Food and Drug Administration from requiring that the drug mifepristone, which induces a medical abortion in the early stages of pregnancy, be picked up in person. Medical groups asked the FDA to suspend the rule because COVID-19 made it dangerous to force patients to visit a doctor’s office to obtain a drug that, according to the medical groups, can safely be prescribed remotely, delivered by mail, and taken by patients at home. When the agency refused to suspend the rule, the groups went to court. The district judge agreed the drug should be available by mail during the pandemic. When he, and subsequently the U.S. Court of Appeals for the 4th Circuit, refused to stay that order, the FDA then turned to the justices for emergency relief.

On Oct. 8, the justices deferred action on the FDA’s request and said they would benefit from further development of facts in the lower court before deciding whether to grant an emergency stay. Alito dissented, joined by Thomas, saying the court should rule on the FDA’s request immediately rather than delay. Alito used his five-page dissent to note the Supreme Court’s “inconsistency” in handling COVID-19 issues in the face of what he decried as “unprecedented restrictions on personal liberty” by state and local governments, “including severe limitations on First Amendment rights.”

After slowing in late summer, the stream of emergency litigation arising from the pandemic on the court’s shadow docket seems to have picked up in recent weeks. As the pandemic continues to raise important legal questions – many of them time-sensitive – more such cases are likely. It remains to be seen whether any of these issues will make it out of the shadows and on to the court’s full merits docket.

Recommended Citation: Stephen Wermiel, Symposium: Coronavirus litigation lurks in the shadows, SCOTUSblog (Oct. 26, 2020, 5:18 PM),