It's Sunday

Speaking of SCOTUS reform - it's desperately needed...

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

[...]

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

[...]

Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo.

[...]

Will Baude coined the term “shadow docket” in 2015 to describe that part of the justices’ workload that is resolved through summary orders, rather than lengthy opinions after multiple rounds of briefing and oral argument. Like all courts, the Supreme Court has always had what’s known as an orders list that is mostly used for anodyne case management issues.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed.

[...]

In a short, unsigned opinion “for the court,” the majority expressly adopted what has been described by scholars as the “most favored nation” view of the free exercise clause. Under this approach, otherwise neutral laws that might incidentally burden religious exercise (like zoning laws or public health regulations, for instance) are constitutionally suspect if they create any exceptions for what judges deem to be “comparable” secular activities.

[...]

But whatever else might be said about the “most favored nation” argument, no prior majority opinion had ever adopted it. Instead, in what one scholar called the court’s “most important free exercise decision since 1990,” the justices used the shadow docket to expand religious liberty.

  NYT

It's not religious "liberty", it's religious overreach.  It's dismantling separation of church and state.

All told, the Trump administration sought emergency relief pending appeal 41 times in four years; in contrast, the Bush and Obama administrations together sought such relief eight times in 16 years. And the justices largely acquiesced to the Trump applications, granting 28 in full or in part.

But whereas virtually all of the Trump cases involved “stays” pending appeal, where a lower court had already ruled against the government, the California ruling involved a far more aggressive form of emergency relief — where a party challenging a government policy that lost in the lower courts seeks to have the policy frozen pending appeal.

[...]

This is not just a technical point; it goes directly to the Supreme Court’s constitutionally mandated (and self-described) role in our constitutional system. As Justice [Antonin Scalia explained in 1986 ], unlike a stay, which is a short-term order delaying a proceeding, an injunction “does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.”

To provide relief in such a case where the right to relief is not clear is to effectively allow the Supreme Court to go first, ahead of the lower courts — never mind that, as the justices have repeatedly said in the past, “ours is a court of review, not first view,” and that their “primary responsibility” is “as an appellate tribunal.” Using emergency orders pending appeal to change substantive law turns those principles on their heads and arguably exceeds the justices’ statutory authority to issue such relief.

[...]

[T]he ruling was the seventh time since October that the justices have issued an emergency injunction — all of which have blocked Covid restrictions in blue states on religious exercise grounds.

Remember when Republicans used to scream about "activist judges"?

Before these rulings, the court had gone five years without issuing a single injunction pending appeal. Of course, such an extraordinary trend might still be justified if these states were openly defying settled legal precedents.

But as Justice Elena Kagan pointed out in her opinion dissenting from Friday night’s order, the majority was able to rely only on “separate opinions and unreasoned orders” to support its analysis. Until this term, it would have been unheard-of to articulate a new constitutional rule while issuing an emergency injunction to enforce it.

[...]

[T]his is more than just an interesting phenomenon; it is a pernicious one. A majority of the justices are increasingly using procedural tools meant to help them control their docket to make significant substantive changes in the law, in defiance not only of their own standards for such relief, but of fundamental principles of judicial decision making.

...but hey, do what you want...you will anyway.