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On the Supreme Court’s shadow docket, the steady volume of pandemic cases continues

As the Supreme Court winds down for the holiday break, one thing that has not slowed is the flow of litigation arising from the COVID-19 pandemic.

In November and December, the court handled seven emergency requests for relief related to COVID-19, six involving challenges by religious institutions to state crowd-restriction orders and one involving exposure of prisoners to the coronavirus.

All of the cases followed a now-familiar procedural pattern. Like the many other pandemic-related cases that reached the Supreme Court in 2020, these latest cases were handled on the so-called shadow docket — the growing category of emergency appeals that are decided without the full-dress treatment of thorough briefing and oral argument. Despite the truncated consideration, the justices have had quite a lot to say in these cases. In three of the seven cases decided in November and December, the justices produced 51 pages of opinions. Add that number to the 45 pages produced in COVID-related prison and religion cases from May through October, and the total is just short of 100 pages, a substantial body of work that has taken place on the shadow docket.

In addition to the religion and prison cases, the court since mid-October has also handled at least a dozen emergency requests from Republicans alleging voting irregularities due to changes in election practices that were made because of COVID-19. The court has not granted relief in any of those cases.

Among the religion cases, the most significant in impact has been Roman Catholic Diocese of Brooklyn v. Cuomo, decided late on Nov. 25, moments before the calendar turned to Thanksgiving Day. The 5-4 ruling produced an unsigned majority opinion and five separate opinions by the justices, 33 pages in all.

The Catholic diocese in Brooklyn challenged an order by New York Gov. Andrew Cuomo (D) limiting the number of people who may attend church services. The church complained that in the highest COVID danger areas, labeled red zones, Cuomo’s order limited church services to 10 people at a time, whereas business establishments deemed essential under the law had no such limits. The diocese argued that this restriction violated the First Amendment’s guarantee of “free exercise” of religion.

The Supreme Court agreed with the diocese and issued an injunction to block Cuomo’s order. The regulations “single out houses of worship for especially harsh treatment,” the majority said. The result was a marked shift in direction. In May and July, the court had rejected emergency requests to lift church capacity limits in California, Nevada and Illinois. When votes were recorded in those cases, they were 5-4 in favor of the states, with Chief Justice John Roberts voting with the four liberal justices. But after Justice Ruth Bader Ginsburg, who voted in those majorities, died in September, and was replaced in late October by Justice Amy Coney Barrett, the court gained a fifth member inclined to side with groups raising religious-freedom claims in COVID-related emergency litigation.

In Roman Catholic Diocese, the unsigned majority opinion was followed by a number of strongly worded statements from justices writing in their individual capacities. Justice Neil Gorsuch wrote a concurrence, declaring that the government “is not free to disregard the First Amendment in times of crisis.” He suggested that “certain states seem to have ignored” this basic premise, and he faulted the dissenting justices for creating uncertainty about the role of the Constitution during the pandemic. Agreeing that the court needed to intervene to protect religious freedom, Justice Brett Kavanaugh wrote that “judicial deference in an emergency or a crisis does not mean wholesale judicial abdication.”

Roberts, as he did in similar cases in the spring, broke from his conservative colleagues – but this time, he was in dissent. He wrote that Cuomo had already amended the orders and eliminated any need for the court to decide on the complaint by the Catholic diocese. And in an apparent response to Gorsuch’s criticism, Roberts defended the good will of the other dissenters: Justices Stephen Breyer and Sonia Sotomayor, both of whom wrote separate dissents that were joined by Justice Elena Kagan. Breyer argued that the diocese had not demonstrated the need for an immediate injunction, and Sotomayor wrote that blocking emergency orders like Cuomo’s may “only exacerbate the Nation’s suffering.”

It is unclear whether the court’s ruling will be the last word in the case. The injunction will stay in effect while the case continues to be litigated in the U.S. Court of Appeals for the 2nd Circuit, and it could return to the Supreme Court at a later date as an appeal from a future 2nd Circuit ruling.

Nonetheless, Roman Catholic Diocese has already emerged as an important precedent for similar cases. At the same time that it issued the Roman Catholic Diocese ruling, the court also ruled in favor of Agudath Israel, an Orthodox Jewish congregation with synagogues in Brooklyn, Flushing and Far Rockaway, New York. Agudath Israel challenged the same order by Cuomo, and the court reached the same 5-4 result against the governor’s policy, with four justices dissenting “for the reasons set out in Roman Catholic Diocese of Brooklyn v. Cuomo.”

Meanwhile, the court faced an emergency request from Harvest Rock Church, a Christian ministry with multiple locations in California, including its base in Pasadena. The church challenged capacity limits imposed by Gov. Gavin Newsom (D). On Dec. 3, with no recorded dissents, the justices sent the case back to a federal district court, which had previously upheld Newsom’s policy. The justices ordered the district court to reconsider its decision in light of Roman Catholic Diocese.

The justices adopted a similar approach  in two orders that the court issued on Dec. 15. In High Plains Harvest Church v. Polis, a challenge to attendance limits for churches in Colorado, the court sent the case back to the lower courts to apply the Roman Catholic Diocese ruling. Kagan, joined by Breyer and Sotomayor, wrote a dissenting opinion noting that Colorado had already changed the restrictions. And in Robinson v. Murphy, a challenge to New Jersey attendance limits brought by a church and a synagogue, the court followed the same course. With no dissents recorded, the justices ordered the lower courts to reconsider the New Jersey policy in light of Roman Catholic Diocese.

Some other lower courts have already reversed course on their own, heeding the Supreme Court’s ruling against Cuomo’s attendance restrictions. For example, on Dec. 15, the U.S. Court of Appeals for the 9th Circuit cited the decision when it lifted Nevada’s restrictions on attendance at religious services.

Different religious freedom issues appeared in an emergency appeal the Supreme Court decided on Dec. 17, Danville Christian Academy v. Beshear. Over dissents recorded only by Gorsuch and Justice Samuel Alito, the court declined to disturb a temporary school-closure order issued by Kentucky Gov. Andy Beshear (D). A private religious school had challenged the order as violating the school’s religious freedom to structure its own operations, but the court noted that the closure order was due to expire imminently. As a result, the court said there was no need to consider the challenge now — but it left open the possibility for the school to return to court if Beshear were to issue another school-closure order. Gorsuch dissented, arguing that the U.S. Court of Appeals for the 6th Circuit had used the wrong legal standard in its decision upholding the restriction, and thus devalued the rights of Danville Christian. Alito agreed that the court should have ruled in favor of the school.

One final COVID-related case from the past two months involved prison conditions amid the pandemic. In Valentine v. Collier, the court for the second time declined any emergency relief to inmates in the Wallace Pack Unit, a prison in Navasota, Texas. The prison houses a sizeable population of older patients at greater risk from COVID-19, which has been reported to be readily present in the facility. In September, a federal district court ordered safety measures for the prison, but the U.S. Court of Appeals for the 5th Circuit stayed that order while prison officials appealed. Two prisoners asked the Supreme Court for an emergency ruling reinstating the district court’s order while the litigation continued. On Nov. 16, a majority of the court denied any relief. In a dissent joined by Kagan, Sotomayor wrote that the prison has been “ravaged by COVID-19.” Sotomayor said the prisoners cannot protect themselves because of the nature of the prison conditions and urged the court to act, but to no avail.

Recommended Citation: Stephen Wermiel, On the Supreme Court’s shadow docket, the steady volume of pandemic cases continues, SCOTUSblog (Dec. 23, 2020, 3:16 PM),