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Thursday evening, the Supreme Court decided another COVID-19 case on the shadow docket. The latest appeal, Danville Christian Academy v. Beshear, came from Kentucky. Here, the governor closed down all schools, secular and non-secular alike. Yet, other businesses were allowed to remain open. The district court preliminarily enjoined the policy. On appeal, the panel stayed the injunction based on a flawed reading of Diocese. At the time, I wrote:

[The Kentucky] Attorney General could seek a stay application from the Supreme Court. I hope the Court can clarify, now or later, precisely what makes a law not neutral. And here we have a slightly different context: religious schools, rather than houses of worship.

The Supreme Court did the exact opposite of what I hoped for. First, the Court refused to decide the case on the merits, because the Governor’s order would expire less than 24 hours later (December 18). Second, the Court offered a tantalizing tease about how to review COVID-19 restrictions of religious schools. Justices Alito and Gorsuch dissented. They vigorously disagreed with the Court’s approach to the first question. And Justice Gorsuch seemed to be offering some tea leaves about how the latter question ought to be answered.

I fear the Danville Christian Academy was collateral damage in the battle over Fulton. The Court didn’t want to opine on the thorny Free Exercise clause issue, so the Justices found a creative way to punt the case away. In the short term, Governor Beshear won the game of whack-a-mole. And he likely will not reimpose this policy after a brush with defeat. In the slightly-longer-term, the Court kept its powder dry concerning the definition of a “neutral” law under Smith.

Let’s beak down the Court’s unsigned four paragraph opinion.

First, the Court observed that the order will expire in one day, and there is no evidence the order will be renewed.

On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K–12 schools for in-person instruction until and through the up-coming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. . . . The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.

Given the unique circumstances here, the Court denied the application without prejudice:

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

The Court engaged in a bit of bait-and-switch here on the timing. True enough, when the opinion was rendered, the Governor’s edict was about to expire. But this case has been pending for some time. In dissent, Justice Alito explained the chronology:

As I understand this Court’s order, it is based primarily on timing. At this point, just a few school days remain before the beginning of many schools’ holiday break, and the executive order in question will expire before classes would normally begin next year. The Court is there-fore reluctant to grant relief that, at this point, would have little practical effect.

I understand that reluctance, but in my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault. They filed this action on November 20, 2020, just two days after the issuance of the Governor’s executive order. And when, on November 29, the Sixth Circuit granted a stay of the order that would have allowed classes to resume, the applicants sought relief in this Court just two days later, on December 1. It is hard to see how they could have proceeded more expeditiously.

The application was filed with Circuit Justice Kavanaugh on December 1. He requested a reply on December 4. This three-day timeline was faster than the usual six days. (At some point, I want to write about how Circuit Justices can affect the outcome of pressing cases by deviating from the usual six-day response time.) Danville filed its reply on December 8. When the Court ruled, the briefing had been complete for nine days. During that time, the Court GVR’d COVID cases from Colorado and New Jersey. The Court could have easily GVR’d the 6th Circuit’s panel, and stated that it did not faithfully apply Diocese. But the Court did not choose that path.

And please don’t tell me it took the Justices nine days to write a four paragraph opinion. Indeed, this per curiam could have been banged out before the reply was even drafted. Rather, I suspect the Court held this order till the day-before-the order expired. Now, the case is not-quite-moot, but who needs to decide this important question if the kiddies go home for Christmas break on Friday?

Call me cynical. But I see manipulation of timing on the shadow docket on a fairly consistent basis. For example, in FDA v. American College of Obstetricians and Gynecologists the Court punted the case away, hoping it would go away. Now the case is back at the Court. These punts are transparent, and seldom work.

Second, the Court included a strange, drive-by merits non-ruling:

The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open. For the latter reason, the applicants argue that the Order is not neutral and generally applicable for purposes of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). Several amici supporting the applicants argue in the alternative that even if the Order is neutral and generally applicable because it treats religious schools the same as secular schools, Smith still requires heightened scrutiny when the “application of a neutral, generally applicable law to religiously motivated action” also implicates “the right of parents” “to direct the education of their children.” Id., at 881 (citing Pierce v. Society of Sisters, 268 U. S. 510 (1925); Wisconsin v. Yoder, 406 U. S. 205 (1972)). The applicants did not squarely raise that alternative Smith argument in the District Court, the Sixth Circuit, or this Court.

What is going on here? Why on earth would the Court see fit to flag arguments raised by amici in an unsigned per curiam opinion from the shadow docket? The Court almost never acknowledges arguments raised by amici–especially when the parties did not “squarely raise” that issue. Hell, the Court routinely uses arguments from amici without citation. What is going on here? And who were these amici (plural)? Well, by my count, one amicus raised this argument: the Becket Fund for Religious Liberty. Another amicus cited the Becket brief.

Let’s dig in here. Employment Division v. Smith held that neutral and generally applicable laws that burden religion would usually be reviewed with rational basis scrutiny. But there was an important exception: laws that burdened so-called “hybrid” rights, which involved the Free Exercise rights, in tandem with another right, would be reviewed with strict scrutiny.

Justice Scalia explained:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut; Murdock v. Pennsylvania; Follett v. McCormick, or the right of parents, acknowledged in Pierce v. Society of Sisters (1925), to direct the education of their children, see Wisconsin v. Yoder (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). FN1

FN1: Both lines of cases have specifically adverted to the non-free exercise principle involved. . . . Yoder said that “the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”

The so-called “hybrid rights” element of Smith has been heavily criticized. My sense is that Scalia made up this dichotomy to account for older precedents that did not use rational basis scrutiny. Still, the Court never squarely decided the status of Yoder in the wake of Smith. The Becket brief flagged this exact issue. Here is a summary of the argument:

Because the Governor’s actions interfere with the right of parents under the Free Exercise Clause to direct “the religious upbringing and education of their children,” this case comes within the ambit of Wisconsin v. Yoder, not the general rule of Smith. As Smith itself made clear, the Yoder line of precedent—which stretches back to at least Meyer v. Nebraska in 1923—governs cases concerning religious education. And, because the Governor has prohibited religious schools from operating, under Yoder his restrictions are subject to strict scrutiny, regardless of their neutrality or general applicability.

I am quite familiar with this argument. For purposes of full disclosure, I am co-counsel with Becket in another case challenging a COVID restriction on religious schools. And we raised a very similar Yoder argument.

Again, the Court declined to rule on this Kentucky case primarily because of the timing. Why, then, did it see fit to weigh in Becket’s brief, especially where that claims was not “squarely” raised? Usually, the Court would be content to talk about the equities, but stay silent about the merits. What is going on with this paragraph?

I think something may be afoot with respect to Fulton. Perhaps the Court is flirting with using the hybrid rights theory to dump the case on narrow grounds. I do not think that there are five votes to overrule Smith. And deciding this case in the context of Smith would require defining what exactly “neutral” and “generally applicable” means. The Court elided over this issue in Diocese. It is a hard issue. Perhaps the Court can decide these cases with a one-off theory, like in Masterpiece Cakeshop.

One way to resolve Fulton is to argue that the case combines the Free Exercise Clause, plus the substantive due process right at issue in Meyer v. Nebraska. Bear with me here. This path is not obvious. Meyer held that the Fourteenth Amendment protects the right to “establish a home and bring up children.” Later, the post-New Deal Warren Court laundered Meyer as a First Amendment case. (It wasn’t). In theory, at least, one could argue that Catholic Charities is exercising something of a hybrid right. That is the right of free exercise, coupled with the right to rear children according to religious principles. Granted, Fulton involves a church, rather than parents. It isn’t entirely clear that churches would have the same substantive due process right. But then again, Frank Meyers was a teacher, not a parent. How could a teacher assert the right of a parent? Likewise, Pierce was brought by an order of Catholic nuns. The Society of Sisters asserted the “liberty of parents and guardians to direct the upbringing and education of children under their control.” Becket’s Fulton brief explained the connection between the religious order and the Fourteenth Amendment right:

And it has recognized the power of a Catholic religious order “with power to care for orphans” to challenge a law which prohibited the religious education they provided. Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 531-532 (1925).

If Fulton could be pigeonholed into the hybrid rights framework, then Smith remains intact for now, but Catholic Charities will prevail. Then again, I’m not sure if the “hybrid” theory was squarely raised. Indeed, the Becket brief criticizes the “hybrid” theory, as part of its critique of Smith. Maybe the Court orders re-argument on this position?

This theory may seem outlandish. But consider a couple clues. First, Justice Thomas did not join Alito and Gorsuch in dissent. Why? Thomas has dissented in (as far as I can recall) every single COVID case that rule against a house of worship. Let’s assume that Chief Justice Roberts is dissenting in Fulton. (I’m sure he’ll find some fact-bound issue to dissent on). That means Thomas is in the majority, and assigned it to himself. Perhaps to cobble together five votes, Thomas had to go with hybrid rights theory. Maybe Justice Kavanaugh or Barrett pushed this point. Is the former Scalia clerk partial to Scalia’s handiwork? For that reason, the per curiam opinion went out of its way to explain that this case did not squarely present the hybrid rights claim. That way, the lower court won’t muck up the waters in the leadup to Fulton.

Justice Gorsuch’s dissent offers several other clues. First, he finds that the Plaintiffs prevail the “hybrid” rights theory.

Second, under this Court’s precedents, even neutral and generally applicable laws are subject to strict scrutiny where (as here) a plaintiff presents a “hybrid” claim—meaning a claim involving the violation of the right to free exercise and another right, such as the right of par-ents “to direct the education of their children.” Smith, 494 U. S., at 881.

Second, Gorsuch proceeds to criticize the hybrid rights theory.

 It is far from clear, too, why the First Amendment’s right to free exercise should be treated less favorably than other rights, or ought to depend on the presence of another right before strict scrutiny applies. See, e.g., Kennedy v. Bremerton School Dist., 586 U. S. ___, ___ (2019) (ALITO, J., statement respecting denial of certiorari); McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1121–1122 (1990).

Third, Gorsuch criticizes the difficult “neutrality” line from Smith:

Perhaps the Sixth Circuit’s errors are understandable. Smith‘s rules about how to determine when laws are “neutral” and “generally applicable” have long proved perplex-ing. See, e.g., Laycock & Collis, Generally Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 5–6 (2016).

A final piece of evidence. Justice Alito goes out of his way to stress that there is no merits ruling:

While I do not agree with the Court’s denial of the applicants’ request for emergency relief, no one should misinterpret that denial as signifying approval of the Sixth Circuit’s decision. As I understand this Court’s order, it is based primarily on timing.

What does Alito’s dissent add that is not in Gorsuch’s dissent? Gorsuch dumps on the hybrid rights theory. Alito’s dissent keeps the issue open.

Imagine if there are four votes for the hybrid right theory in Fulton. And Gorsuch, as he is wont to do, only concurs in judgment. That fracture would leave Free Exercise jurisprudence, well, fractured.

We’ll see soon enough what happens in Fulton.

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Massachusetts v. EPA was unquestionably the most important environmental law decision of the Roberts Court. By a 5-4 vote, the Supreme Court concluded that states had standing to sue the federal government over the latter’s failure to regulate greenhouse gases, that such gases could be regulated as “pollutants” under the 1990 Clean Air Act, and that the Bush Administration, in refusing to adopt such regulations had acted arbitrarily. This decision set federal climate regulation in motion and helped unleash a torrent of state-driven policy litigation against the federal government.

In The Rule of Five: Making Climate History at the Supreme Court, Harvard law professor Richard Lazarus provides an eye-opening insider’s account of the Massachusetts v. EPA litigation from its initial inception through to the ultimate decision. With extensive access to the players and their files, Lazarus offers a clear window into how the case was brought, how it was almost scuttled, and how the environmentalists ultimately prevailed. Professor Lazarus is quite sympathetic to the cause he chronicles, but he is also an insightful and perceptive observer who know how to tell the tale.

I reviewed The Rule of Five for the Fall 2020 issue of The New Atlantis. My review is now out from behind the paywall, so I encourage you to take a look. Here’s a taste:

Despite the repeated failures to pass climate bills in Congress, a lawsuit to authorize federal regulation of greenhouse gases prevailed in the Supreme Court. In 2007, in Massachusetts v. EPA, the Court ruled 5 – 4 that greenhouse gases are air pollutants subject to regulation under the Clean Air Act adopted in 1970, and last amended in 1990. Though unable to persuade majorities in Congress, environmental advocates convinced a majority on the Court. The resulting decision instantly shifted the climate policy terrain and destabilized established legal understandings in administrative law.

But despite that victory thirteen years ago, what remains unclear to this day is whether the ruling has meaningfully advanced efforts to stabilize atmospheric concentrations of greenhouse gases. What is clear, however, is that the ruling has helped to unleash a new generation of ­policy-driven litigation, exacerbating the tendency of elected officials to pursue change in agencies and courts instead of in legislatures.

The full review is available here.

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I am, admittedly, very tough on the Chief Justice. Not because I disagree with his decisions. I routinely disagree with decisions from all nine Justices. No. I am tough on Roberts because of his arrogance. He entered this position fifteen years ago with a master plan: if there were fewer 5-4 right-left decisions, the Court will function better as an institution. And Roberts would cast decisive votes to reduce the number of right-left 5-4 decisions. Congratulations. But the means he chose to accomplish those ends have broken the Court, and the way it is perceived.

Shortly after Blue June, I wrote “Roberts’s self-professed humility depends on everyone being too dumb to see what he is really doing.” I firmly believe Robert’s transparent Machiavellianism has done far more damage to the Court than Scalia’s acerbic barbs or Kennedy’s vapid prose. I can firmly disagree with a Ginsburg or Sotomayor opinion, but I know, and respect, why they reached the result they reached. For Roberts, every decision has to refracted through some bizarre political lens. His jurisprudential lodestar is the Gallup poll.

Chief Justice Rehnquist accurately characterized this dilemma in his handdown of Planned Parenthood v. Casey. This passage, regrettably does not appear in the published dissent. But it is worth listening to. We include the audio in our 100 Cases series.

The joint opinion’s insistence on preserving the form, if not the substance of the rule, can just as easily be viewed as a surrender to those who have brought political pressure in favor of that decision. Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.

The Chief’s arrogance prevents him from recognizing the depth of this bottomless pit. He keeps digging, year after year. He is so locked into his ways that he cannot escape. He decided his gameplan in 2005, and absolutely nothing can make him change course.

Today’s Washington Post includes a column by Varad Mehta and Adrian Vermeule that fully captures my perception of of the Chief. It is titled “John Roberts’s self-defeating attempt to make the court appear nonpolitical.” The essay begins:

“The highest art is artlessness,” observed Francis Alexander Durivage, a now largely forgotten 19th-century American author: The appearance of acting naturally, without calculation, wins trust and admiration. In contrast, strategic behavior flagrantly intended to advance an agenda often creates public suspicion — which may undermine the aims for which the strategy is undertaken.

Chief Justice John G. Roberts Jr. might consider the Durivage Principle. In a number of important cases in recent years, observers on both left and right have concluded that Roberts has engaged in strategic maneuvering: His goal appears to be to preserve what he takes to be the legitimacy of the Supreme Court, by disproving any suspicion that the justices vote ideologically or otherwise engage in political behavior.
Yet because it is so clear that he is crafting opinions with this end in mind, the chief justice defeats his own aims. Roberts famously said at his confirmation hearing that the role of the justices is just to “call balls and strikes.” No one thinks that is an apt description of his judging. By striving so conspicuously to depoliticize the Supreme Court, he has brought about the very thing he hoped to prevent: No one has done more to politicize the court than the chief justice.

Mehta and Vermeuele walk through Roberts’s greatest hits, including NFIB v. Sebelius, Department of Commerce v. New York, June Medical v. Russo, DHS v. Regents, South Bay v. Newsom. There is one prominent Roberts 5-4 decision that doesn’t fit the mold: Shelby County v. Holder. Only his longstanding, Reaganesque grievance against the Voting Rights Act allowed him to deviate from his master plan. And then, he gave the government one, last meaningless chance to repair the statute. (See pp. 88-90 of my article, SCOTUS after Scalia). I doubt Shelby County would come out the same way if it was decided post-NFIB.

Mehta and Vermeule conclude:

As chief justice of the United States, Roberts’s solicitude for the reputation of both the court he leads and the entire branch of government of which he is the figurative head is understandable. Ultimately, however, his efforts to show that the court is not a partisan institution have provoked the right as much as the left. Two of Roberts’s consequential legacies will probably be the very politicization of the Supreme Court he sought to prevent, and a Republican Party that is likely to turn “No more Robertses!” into a mantra — as it did “No more Souters!” The chief will have no one to blame but himself.

There is still a way for Roberts to escape this bottomless pit.

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After a day spent analyzing the safety and efficacy data for Moderna’s COVID-19 vaccine, the Vaccines and Related Biological Products Advisory Committee (VRBPAC) was asked: Based on the totality of scientific evidence available, do the benefits of the Moderna COVID-19 vaccine outweigh its risks for use in individuals 18 years of age and older? The panel voted 20 in favor, with 1 abstention.

Now that the VRBPAC has voted in favor, the question goes tomorrow to regulators at the Food and Drug Administration (FDA) who will decide whether to issue an emergency use authorization (EUA) for the vaccine. Considering that the FDA issued an EUA for the Pfizer/BioNTech COVID-19 vaccine the day after the VRBPAC voted in favor of that vaccine last week, there is little doubt that the Moderna vaccine will also be granted authorization. Assuming that there are no delivery snafus, the company says that it can make available 20 million doses of its vaccine before the end of the year.

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Recently, several Ninth Circuit judges talked to the L.A. Times about taking senior status now that there is a Democrat in the White House. Now, several judges have talked to Buzzfeed about the same topic. Some of the judges spoke on the record. And others off the record.

First, a Clinton-nominated circuit judge spoke off the record:

“If Democrats get the Senate, I would take [senior status] maybe at the end of January, might hold off until April,” said a Clinton-nominated federal appeals judge who was eligible to take senior status under Trump; the judge requested anonymity because ethics rules restrict judges from speaking about politics. “If they don’t get the Senate, it will depend on what kind of deal is worked out between the president and the Senate.”

The judge explained that if Democrats didn’t win the Senate and they couldn’t have “confidence” in the qualifications of their successor, they were prepared to stay put as an active judge for two more years. But the judge said they wouldn’t wait indefinitely, given the possibility of McConnell holding up Biden nominees before the 2024 election as he did during Obama’s final years in office.

“I’d have to go in two years,” the judge said. “I could be locking myself into a life on the bench.”

Chief Judge John Jones III (MDPA) did not take senior status, in part, because he was next in line to become Chief Judge. He also opened up about the qualifications of Trump nominees.

US District Chief Judge John Jones III, who was confirmed under George W. Bush, became eligible for senior status when he turned 65 this summer. He said that last year a Senate aide — he declined to identify the aide or the senator, but said it was “really an emissary from the president” — approached him and “reminded” him that he could open up his seat for Trump. Jones said he declined, citing the fact that he was next in line for chief judge, a job that he took over in the spring.

District judgeships tend to be less politicized than appeals court nominations, but there are occasionally fierce partisan battles over those seats. Jones said he has no plans to leave now that he’s chief judge, but said the party of the president wouldn’t control his decision, and he knew from conversations with colleagues that other judges felt the same way.

“I wouldn’t have any hesitation whatsoever” about stepping down under a Democratic president, Jones said. “Elections mean something, presidents nominate people. I’ve been at this 18-plus years, and I think you have to do what’s right for your court and what’s right for yourself at the appropriate time.”

The Trump administration prioritized tapping young judicial nominees with strong conservative credentials. Jones had positive things to say about the new additions on his court but said generally that he was “concerned” by the lack of practice experience of some of Trump’s district court nominees, and hoped Biden would take a different approach.

“I would hope that, and I think this will be true in the Biden administration, they’ll be a little bit more circumspect — not criticizing any single appointee by President Trump, but you want to give a nod to experience. Relative youth is OK, but particularly in the trial bench we need able people who have experience,” Jones said.

Third, we hear from Judge Kanne, a Reagan nominee to the Seventh Circuit. He announced that he would take senior status during the Trump administration, but that plan fizzled out:

Judge Michael Kanne, who was confirmed to the 7th Circuit under then-president Ronald Reagan in 1987 and has been eligible to take senior status since 2003, said he didn’t have plans to leave but wouldn’t rule out stepping down under a Democratic president.

“I wouldn’t say it’s a deal breaker,” the 82-year-old Kanne said. “The main reason I’m staying on and I didn’t take senior status earlier when it was available was I’m in relatively good health. It gives me a purpose and I like what I do and I think I can add something to the work of the court. So the fact of the political aspect of it might have something to do with it, too, but it’s only part of it. I don’t say, ‘Oh, well, we’ve got a Democrat in the office now, and I’m never taking senior status because of that.'”

The Trump administration unsuccessfully tried to fill Kanne’s seat. At the start of 2018, Kanne agreed to take senior status based on an understanding that Trump would nominate Kanne’s former clerk Tom Fisher. But a few months later, Kanne’s name disappeared with no explanation from the judiciary’s public list of vacancies. Contacted by BuzzFeed News at the time, Kanne revealed that he was staying on because Fisher was no longer in the running, and the judge had no interest in leaving his seat open for just anyone; Politico later reported that Vice President Mike Pence had scuttled the nomination.

…

Kanne said the prospect of a Democrat potentially winning the White House in 2020 didn’t change his mind about staying on after Fisher’s nomination fell through.

“I’m more, I guess, selfish in the sense that I enjoy what I do and I don’t have any real hobbies,” he said.

Fourth, Judge Leslie Southwick (CA5) went on the record:

“My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I’ve seen it … or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case,” Southwick wrote. “It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though.”

Asked to elaborate, he said in a phone interview that he simply wasn’t ready to give up the work of being an active judge. Asked if the politics of the president would affect his decision-making when he did feel ready to step down, he replied, “not particularly.”

“I would certainly be aware of who the president is and the kind of judges that person is selecting,” Southwick said. “But it wouldn’t weigh very heavily on me.”

Judge Southwick cited me in the referenced article:

The administration itself has apparently encouraged some judges to take senior status. Evidence of that came a few months after Don McGahn resigned as White House Counsel in October 2018;525 when he told the Houston chapter of the Federalist Society that circuit judges should retire in order to create more vacancies.526 Further, a South Texas College of Law professor, Josh Blackman, who is a widely followed commentator, has recommended retirements.527 Professor Blackman wrote in advance of the possible loss of a Republican Senate majority in the 2018 midterms, which did not happen.

My general sense is that judges should not say something privately that they would not say on the record. Indeed, I do not see why judges should talk to reporters at all, but that ship has sailed.

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