Litigating Coronavirus: Weekly Brief for May 25

At the outset, this week looked as if it’d be a quiet one; no opinions were expected, and oral arguments wrapped up a few weeks ago. Even this week’s orders list turned out as unremarkable as any. But a series of emergency, coronavirus-related petitions wound up in the Court’s hands. All told, the Court issued rulings on four such petitions, culminating in a 1:00am, Saturday morning decision to reject a California church’s assertion that the state’s stay-at-home orders discriminate against houses of worship (a decision made on a 5:4 vote). So while Court-watchers expected this to be the last “dead-week” before the Court’s term concludes in July, it turned out to be anything but.


This Week:
Decisions: 0
Cases Argued: 0
Cert Grants: 0
Opinions Relating to Orders: 2
GVRs: 1

O.T. 2019:
Cases Decided: 36
Cases Remaining: 25*
Weeks Left in Term: 5**

* This number does not include cases that were granted and had been set for oral argument in March or April, but were postponed due to COVID-19 and were not rescheduled for the May virtual argument sitting.

** This number reflects the date at which the Supreme Court’s term usually ends (the last week of June). However, O.T. 2019’s end date may be later due to measures taken in response to COVID-19.


The Court was off on Monday due to Memorial Day.


First thing Tuesday morning, the Court released a very benign orders list. No new cases were added to next term’s docket. The Court granted, vacated, and remanded Lindsey v. United States in light of Davis v. United States (2020), which was decided back in March.

Tuesday afternoon, the Court issued the first COVID-related, miscellaneous order of the week. In Williams v. Wilson, six Justices voted to uphold a district court’s order directing the Trump administration to identify elderly, at-risk inmates in an Ohio federal prison for potential “compassionate release.” The district court issued that preliminary injunction on April 22, and the Trump administration sought a stay of the injunction. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh ruled against the administration. Justices Thomas, Alito, and Gorsuch would have granted the stay. However, the Court’s decision is not necessarily the end of the story. On May 19, the district court issued another order enforcing the April 22 injunction. The Trump administration has yet to seek a stay of the May 19 order, and the six-Justice majority noted that its decision in no way prejudices an application to stay the May 19 order, should the Trump administration choose to file one.


The Court held no proceedings on Wednesday.


The Court conducted its weekly, private (tele-)conference on Thursday. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. We can expect news from this conference in the Court’s orders list next Monday. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Zadeh v. Robinson. This is one of several “qualified immunity” cases before the Supreme Court. The doctrine of qualified immunity applies in lawsuits against federal officials where the actions in question are discretionary actions performed within the exercise of their official duties. The doctrine has become contentious in cases where police are charged with using excessive force.
  • Ohio v. Ford. This is a capital case that asks what the proper standard is for determining whether a criminal defendant is “intellectually disabled” under the Eighth Amendment’s Cruel and Unusual Punishment Clause.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment bars a state from suing the leader of the protest for criminal negligence where the leader did not necessarily promote or instigate the violence.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.

The Justices issued two more COVID-related orders Friday afternoon. First, in Marlowe v. LeBlanc a diabetic Louisiana inmate, Christopher Marlowe, challenged the adequacy of coronavirus-prevention measures in his prison as they applied to him. A district court issued a preliminary injunction in his favor, but the Fifth Circuit Court of Appeals stayed that injunction. Marlowe asked the Supreme Court to lift the stay, but the Court declined. No dissents were recorded. The Court’s brief order did note that, while Marlowe’s full case plays out in the lower courts, he also has the option of filing a grievance that “set[s] out specifically the relief he requests be provided to him in the prison.” If he files one, the Court expects his request to be considered “promptly.”

Next, in Elim Romanian Pentecostal Church v. Pritzker the Court rejected a request from two Illinois churches to halt enforcement of Illinois’ stay-at-home orders. On May 27, the churches filed a preliminary injunction request in which they claimed that Governor Pritzker’s stay-at-home orders discriminated against religious organizations and violated the First Amendment and certain federal statutes. But the Justices determined they didn’t need to reach that issue; on May 28, Governor Pritzker issued new stay-at-home directives that superseded the challenged directives from May 27 and before. So when the Court declined to grant the churches’ request, it cited this change of guidance and pointed out that the churches are allowed to challenge the new guidance if they so choose. No Justices recorded a dissent.

While the Court in this case did not opine on the merits—shutdown orders vs. religious liberty—it did in a different case just a few hours later…

This Weekend

In the wee hours Saturday morning, the Court decided South Bay United Pentecostal Church v. Newsom. Here, a California church had challenged California’s stay-at-home orders, arguing that they discriminate against houses of worship and violate the church congregants’ Free Exercise rights.

But the Court, by a 5:4 majority, disagreed. Four Justices (Ginsburg, Breyer, Sotomayor, and Kagan) appeared to disagree outright, as they did not pen an opinion explaining their votes. Chief Justice Roberts—providing the crucial fifth vote—concurred. The stay-at-home guidance “places temporary numerical restrictions on public gatherings to address this extraordinary health emergency,” he explained, “limit[ing] attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.” He then noted that, to win its case, the church must clear a high bar since it seeks a full-fledged preliminary injunction rather than just a temporary stay. “[U]nlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts,” Roberts says (quoting Respect Maine PAC v. McKee (2010)).

In Roberts’ mind, the merits of the case do not help the church’s cause. “Although California’s guidelines place restrictions on places of worship,” writes Roberts, “those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” The church attendance restrictions are similar to or even more lenient than restrictions on other “comparable” secular gatherings in California, including “lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”

Roberts continued with a more general argument. This kind of issue (when to lift restrictions on public gatherings during the pandemic) is a “dynamic and fact-intensive matter subject to reasonable disagreement,” he explained. As the Court recognized in Jacobson v. Massachusetts (1905), the Constitution “entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.'” Accordingly, when those officials “act in areas fraught with medical and scientific uncertainties,” their “latitude” to act is “especially broad” (quoting Marshall v. United States (1974)). As long as they don’t exceed these broad limits, they “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” Roberts concluded (internal quotation marks omitted). While the church may think that California’s shutdown orders are “clear[ly]” and “indisputably” unconstitutional, Roberts found that conclusion “quite improbable.”

Justice Kavanaugh (joined by Justices Thomas and Gorsuch) dissented. In short, he disagreed with Roberts’ assessment of just how similar is the enforcement of the state’s stay-at-home orders with regard to churches versus comparable secular businesses. Recall that California places a 25% occupancy cap on religious gatherings. Roberts observed that this quarter-occupancy requirement for churches is comparable to (or even more lenient than) limits placed on similar, nonreligious businesses. But Kavanaugh disagreed. No 25% occupancy cap is placed on those businesses, he wrote. California subjects churches to that quarter-occupancy limit, but not other businesses like “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” Thus, California’s stay-at-home orders disfavor religious institutions in particular, Kavanaugh determined.

To justify such disparate treatment under the First Amendment, California must demonstrate that its shutdown measures are “narrowly tailored” to “advance . . . a compelling government interest” (as recognized in Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993)). “Undoubtedly,” the state has a compelling interest in curbing the spread of coronavirus and ensuring the health of Californias, Kavanaugh said. But the “narrowly tailored” bit is where California runs into problems. To Kavanaugh, the state has chosen to act on that interest in one way where several secular businesses are concerned, and in a different way where religious institutions are concerned. It must show some justification for this disparate treatment. But it hasn’t. The church has even agreed to abide by the attendance restrictions for secular businesses. So how is it permissible for California to insinuate that “someone [can] safely walk down a grocery store aisle but not a pew,” Kavanaugh asked (quoting the church’s brief). “And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”

Some things the state could have done were (1) “insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities”; or (2) “impose reasonable occupancy caps across the board.” But it has does neither.

Since California has not offered any justification for its stay-at-home orders’ disfavoring of religious organizations, concluded Kavanaugh, its orders violate the First Amendment. Thus, Kavanaugh, Thomas, and Gorsuch would have granted the church’s request to enjoin enforcement of the shutdown orders.

Justice Alito also would have voted to grant the church’s request, but he did not join Kavanaugh’s opinion. He didn’t enter an opinion explaining his vote.

The Week Ahead

On Monday the Court will release orders at 9:30am EDT. At 10:00am there is a possibility of opinions. The Justices will hold their next weekly conference on Thursday. As we near the end of the term, there is a good chance we will see opinions issued on multiple days throughout the weeks to come.

Photo Credits: San Diego Union-Tribune (2020)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s