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“What did you love doing as a child that you’re still sort of doing today?”

That’s the question I’ve posed to lots of people, including a businessman I briefly spoke with at the TED Talks in Vancouver a few years ago. I didn’t take notes, but the conversation made a strong impression on me.

“Nothing,” I recall him replying.

Nothing?

“I played,” he conceded.

“You don’t have something better than that?” I wheedled.

“Well…” I remember him saying after a pause. “I grew up in Miami. There were a lot of fruit trees.”

As a kid, he would go around picking up the fruit that fell onto public property. Then he’d put it in a little wagon and sell it. That is, he took stuff that other people produced and sold it to someone else. And in a way, he still does.

His name is Jeff Bezos.

Bezos is uncommon. Going from underage fruit salesman to the founder of Amazon is a singular career path. But his trajectory from childhood diversion to adult career is not. So many people who have found an occupation or serious pastime they love were drawn to it at a young age. This wasn’t something they were doing for a grade or a trophy. It was just something they did either because it fascinated them or because it allowed them to get something else they desperately wanted.

Kids with a passion are as lucky as can be. They’re finding direction. They’re developing confidence. Best of all, they aren’t listless lumps. They are learning how to make things happen.

That’s why it’s tragic that so many kids have seen their noodle-around time colonized by adult-structured, adult-supervised activities. A 2004 University of Michigan study calculated that between school and homework, kids were spending 7.5 hours more a week on academics than kids were 20 years earlier—and that’s not counting the explosion of extracurriculars in the last couple of decades. COVID-19 has given them back a lot of free time and we’ve seen some encouraging leaps in independence, though the pandemic has also limited their freedom of movement and chances to interact with other kids in unstructured ways. But the general direction of childhood for the past two generations has been toward more and more time spent in organized activities.

Without free time, children don’t have a chance to explore and expand. This isn’t just bad for the kids. It’s bad for the country, which loses out on the development of entrepreneurship and talent that makes all our lives better.

“The child is father to the man,” poet William Wordsworth wrote in 1802.

It’s a weird observation, but it’s also true. We’re kids before we’re adults, which means our childhood selves have had a lot longer to influence us than our more recent incarnations. Our childhoods are the oldest, deepest parts of us. That’s why it’s so important to keep that time from becoming indistinguishable from adulthood.

It’s obviously fine for kids to have some social obligations. But they also need the freedom to goof around and get something started, whether it’s a project, a ballgame, or business. That’s how they come into their own.

Take Dan Senor. Four days before his bar mitzvah, his father died. From then on, Senor recalls, times were tight. But on his way home from school, he would stop at the magic shop in his Toronto neighborhood. He taught himself some tricks and started entertaining at children’s parties. By high school, he was working Saturday night galas entertaining adults.

He made enough money to put himself through college. He also learned how to keep people’s attention. If a trick went wrong, “I had to learn to think on my feet,” he says. “It was like bootcamp.” At the same time, “I was negotiating with the adults who were hosting these parties. These hosts were my clients. I was a kid making calls pitching new business every week.”

Senor hustled some more on weeknights, selling programs at Toronto Blue Jays games, jockeying for position at the gates where the buses dropped off the Americans. Why? “I made a premium on the currency trade.” American dollars were worth more than Canadian. All the time, he said, “You’re busy plotting, planning, figuring the system out when you’re a kid. No one’s training you.”

And therein lies the difference. Senor wasn’t doing any of this for a test or a teacher. It was his internal drive.

He absorbed those lessons and has used them all as an adult. During the Iraq war in the early 2000s he was chief spokesman for the U.S.-led Coalition in Iraq, giving daily press conferences from war zones for 15 months. He came back and started a private equity fund. He invested in Israeli startups and eventually co-authored Start-Up Nation, a book about a topic near to his heart since boyhood: entrepreneurship. It was a bestseller.

Now Senor is making deals as senior advisor at Elliott Management, a major investment firm. He learned negotiating and public speaking as a kid. “But those are the tangible skills,” he says. “I would say the less tangible is this sort of problem-solving, figure-it-out, make-things-happen mindset.” As for today, “It’s a huge problem that kids aren’t learning how to make things happen.”

“Making things happen” does not have to entail becoming a business dynamo. But it does have to do with discovering something interesting enough that you are driven to pursue it.

Peter Gray, an evolutionary psychologist and Boston College professor emeritus (and one of my co-founders at the nonprofit Let Grow), has spent a good part of his career studying kids and self-direction. In particular, he has studied children who are unschooled—homeschooled without a set curriculum—or who attended the Sudbury Valley School in Massachusetts, where there are no grade levels and no grades. Kids there, aged 4 to 18, spend their days playing and delving into what interests them.

Among former Sudbury and unschooled kids, Gray says, “in about 50 percent of the cases, there was a very direct relation between what they played as a child and what their career was now.”

One girl who loved making ever-more-elaborate toy boats grew up to be a cruise ship captain. A boy who loved tinkering and made Sudbury staffers drive him to the dump for parts ended up becoming a machinist and inventor. A kid who loved hiking and photography and hang gliding became an aerial nature photographer.

Gray thinks his own childhood shaped his career as well. His parents moved around a lot. He was shy but good at sports, so he would make new friends playing whatever game the local kids fixated on: baseball in one place, marbles in another, jacks in a third. (Yes, the boys there played jacks!) Of course, lots of kids have had similar experiences. But Gray wasn’t just playing. He was paying close attention to how play creates kid culture. Today, that’s what he studies.

There’s a big difference between kids being intrinsically drawn to an activity and parents trying to foist an interest upon them. Of course it’s great for parents to introduce their kids to the wide world of wonders out there. But at some point, kids have to start finding their own way.

When lyricist Benj Pasek won an Oscar for his “City of Stars” song from the movie La La Land, he said, “I want to thank my mom who…let me quit the [Jewish Community Center] soccer league to be in a school musical.” It probably didn’t hurt that his mom is a professor of developmental psychology at Temple University and co-author of the 2003 book Einstein Never Used Flashcards: How Our Children Really Learn—And Why They Need To Play More and Memorize Less.

John McWhorter recalls coming out of kindergarten one day and hearing a girl speaking Hebrew. “What is that?” John demanded of his mother. He was so frustrated at not understanding these strange-sounding words that he started to cry. “I wanted to break that code!” Today he’s a professor of linguistics at Columbia.

“When children are allowed to pursue their passion, they spend more time doing it,” says psychologist and visiting lecturer at the University of Chicago Pamela Paresky. The time they put in makes them better and better at the activity: “It’s self-reinforcing,” she says. Along the way, they’re automatically learning patience and focus, which will serve them throughout their lives.

It’s true that sometimes what kids are drawn to is not obviously positive. “We were pretty much unsupervised as kids,” Scott McNealy recalls of himself and his brothers. “We went over to the quarry to fish, we went into the woods and snuck out dad’s guns and shot things, we went into the back field and made forts and fires and blew things up—all kinds of things kids under really good supervision probably would not have been allowed to do.”

Then, at night, he’d sit nearby as his dad, a corporate vice president, went through his briefcase and threw away the papers he didn’t need. McNealy would fish them out and ask about them.

Unbridled hijinks coupled with informal business tutorials don’t always lead to success. But McNealy went on to found the groundbreaking computer firm Sun Microsystems. Now he’s co-founder of Curriki, a nonprofit digital platform that helps students self-direct their education.

Kids need more free time to learn on their own. And parents need more respect for the learning that happens when a kid, who may be doing poorly at school, is eagerly rebuilding an engine or making TikTok videos.

As a child, Colin Summer spent endless hours drawing recreational vehicles with preposterous powers. “One was an Arctic explorer that could float for part of its journey,” he says.

He loved drafting—and dreaming. As a teen, he also started getting into tech. He followed his brother to a part-time job at a computer shop in Manhattan. One day Teller, of the magic duo Penn & Teller, came in. A document had disappeared on his computer (“which is pretty funny,” Summer quips). The clerks up front said, “Go in the back room and ask for Colin. He’s our troubleshooter.”

Summer retrieved the document. Teller was thrilled. Pretty soon, Teller’s partner Penn Jillette was asking if Summer could make his computer do cool things. “I said, ‘Oh, yeah!'” Summer recalls. He helped make Penn’s computer say, “Hold your horses, I’m coming!” as it booted up, and thus began a great friendship.

Years later, when Summer graduated with his architecture degree, he put it all together: The magical motor homes. The deep dive into tech. The drafting. The dreaming. The friendship. He designed Penn’s house in Las Vegas, complete with six secret rooms.

Naturally, not every kid who climbs a tree ends up a forest ranger, nor does every kid who scribbles poems end up Sylvia Plath (thank God). My sister constantly played teacher and ended up in hospital administration. My neighbor Linda, obsessed with elephants, ended up an autism advocate. Ross, who lived nearby, was a genius of a practical joker and became a talent agent. (Maybe that is a straight line.) Joel, always Batman, never busted a bad guy. He does something in real estate.

What they and so many others got out of their free time may not have been an obvious career path. But they did get something so many kids today aren’t getting—or at least weren’t getting till COVID-19 hit: A chance to just chill. Which is a nice way of saying they had plenty of time to be bored.

Boredom is a terrible thing. University of Virginia researchers discovered that it can be more painful than actual pain. First, test subjects were given an electric shock powerful enough that they said they would pay to avoid it. Then they were given 15 minutes alone with nothing to do—in the room with the shocking device. Whereupon 67 percent of the men and 25 percent of the women started administering themselves the shocks. The participants “would rather have something to do than nothing,” observed lead researcher Timothy Wilson. When that painful “nothing time” isn’t filled for kids by adults—4 p.m. gymnastics, 5:30 piano, 6:30 dinner, 7 p.m. homework—they have to fill it on their own.

Let Grow did a survey of 1,600 kids across the economic and geographic spectrum during the COVID school closures last spring and one of the questions we asked was, “What new thing are you doing just for fun, not school?” The range of new interests—origami, fuses, fishing, biking, bitcoin (!)—just showed where boredom can take a kid, online or off.

Or it can take them to knocking down people’s mailboxes (channeling Stand by Me here), or throwing snowballs at passing cars, or taking recreational drugs. It’s not that boredom leads straight to the Nobel Prize. But when he was a kid, do you know how Einstein spent at least some of his time? He made card houses. Did it teach him physics? Maybe. But I assume mostly it was just something fun to do. And if along the way it taught him how to tackle a problem over and over again, that’s a win.

There’s one other thing kids get less of when they’re mainly in organized activities, and that’s failure. They can’t get lost and scared—they’re signed in and signed out. They can’t learn to suck it up when they get hurt—a sympathetic adult is always nearby with a Band-Aid or hug. Sometimes they can’t even tell if they lost the game because everyone gets a trophy. Heaping helpings of failure are not recommended for anyone. But dealing with some minor bumps early on means that you’re a little more prepared for some bigger ones later. That’ll come in handy. What’s more, there are no lessons learned as deeply as the ones we learn when we fail.

When I asked one of Reason‘s former editors, Manny Klausner, if possibly any of his childhood experiences led him, a failure story stood out to me: As an extremely proficient high school chess player, Klausner got the chance to play world champion Bent Larsen. It was a simultaneous exhibition, so “the grandmaster is walking around the tables and he knows exactly what he’s going to do when he gets to you,” says Klausner. The players have however long it takes for Larsen to play the other 14 participants to figure out their next move. But as players lose or surrender, that interlude becomes shorter and pretty soon “you’ve got four or five [players] left and the guy is right there, constantly, so that is a lot of pressure for a kid in high school. I knew I had at least a draw. I found what seemed to be a clear winning move,” Klausner recalls. But the kibbitzers told him to make a different move. “I said, ‘If I do it, I’ll lose!'”

He caved to the crowd. He lost. And you might say that he has been a skeptic of conventional wisdom ever since.

Why is it that just hours after birth, baby gazelles are literally up and running? They come into the world knowing almost everything their parents know: how to move, eat, avoid hyenas.

That’s because they really don’t need to know much, says psychologist Barbara Sarnecka. Evolution can pre-install a nearly complete set of gazelle operating instructions because there’s so little code. But humans?

We come out “uncooked,” Sarnecka says. We have an extremely long time when we can’t make it on our own. “It makes us vulnerable, but the flip side is that we can learn massive amounts of information about incredibly complex environments.”

This ability to absorb and process information allows us to adapt to wherever we’re born—the language, the terrain, the dangers and opportunities. Evolution couldn’t prepare us for every possible environment, so it prepares us to be curious and ready to learn. That is our evolutionary superpower.

It can be stunted by cruelty, or famine, or illness. But it can also be stunted by lovely adults with the best of intentions, who have surveyed the world and determined the very best thing for their child to work on, day in and day out. In the adults’ view, that thing is so valuable that the child shouldn’t be allowed to waste his time doing something silly like drawing R.V.s, or setting things on fire, or learning magic tricks.

In psychological terms, “adults are saying, ‘Here’s the environment. I’ve already mapped it. Stop exploring,'” says Sarnecka. “But that’s the opposite of what childhood is. Imagine yourself as a kid—all the time you were spending being a burgeoning writer.” (How did she know I spent a ton of time writing?) “Now let’s say that instead, you had to spend all that time in soccer and Kumon.” Sports and worksheets: two things I dislike and don’t do well at. “You’d be anxious,” she concludes. “You’d be depressed.”

When kids are stuck doing things that don’t turn them on, they turn off. They look like losers to others and maybe to themselves. This can happen at school, and it can happen during what would have been their free time.

Kids need a chance to discover and pursue their own paths. We’ve got to declutter America’s achievement-focused childhood. Because when our kids have enough time and freedom to find their way to creativity, perseverance, entrepreneurship, and joy, they win—and so does the country’s future. We get a lot of people making things happen, sometimes even strange, new things—perhaps a wagon for selling discarded fruit that eventually spawns a giant online marketplace that sells practically everything everyone in the world can make.

Sarnecka herself dreamed up a very odd pastime as a kid. “I wrote a list of questions and picked up the phone and started randomly calling strangers and interviewing them about whether they had ever played a musical instrument.” It probably looked like a kooky, even rude, hobby to outsiders.

Today she’s a professor of cognitive sciences at the University of California, Irvine, where she gets paid to ask random strangers questions about their lives.

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This post is the third installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.” Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause.

Earlier this week, I described Governor Cuomo’s microcluster regime as a whac-a-mole game. Whenever any responsive pleading is due, the City magically finds that the challenged restrictions can be lifted. I suggested that the Court should rely on the capable-of-repetition-yet-evading-review standard.

Diocese does not adopt this standard expressly, but it does hint at it.

First, the Court says this controversy is not moot.

There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particularareas without prior notice.

The Court does not use the phrase “capable of repetition yet evading review,” but the first cited case, FEC v. WRTL, does use that phrase.

As the District Court concluded, however, these cases fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S. Ct. 2652, 2662, 168 L. Ed. 2d 329 (2007)

The other cited case, Friends of the Earth, relies on the related voluntary cessation doctrine.

In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708, 145 L. Ed. 2d 610 (2000)

Going forward, district courts now have a green light to use “capable of repetition yet evading review” and “voluntary cessation” where the Government modifies the COVID-19 regime at the eleventh hour.

Second, the Court explains why the Governor’s last-minute modification does not end the case:

If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief canbe obtained. At most Catholic churches, Mass is celebrated daily, and “Orthodox Jews pray in [Agudath Israel’s] synagogues every day.” Application in No. 20A90, at 4. Moreover, if reclassification occurs late in a week, as has happened in the past, there may not be time for applicants to seek and obtain relief from this Court before another Sabbath passes. Thirteen days have gone by since the Diocese filed its application, and Agudath Israel’s application was filed over a week ago. While we could presumably act more swiftly in the future, there is no guarantee that we could provide relief before another weekend passes. The applicants have made the showing needed to obtain relief, and there is no reason why they should bear the risk of suffering further irreparable harm in the event of another reclassification.

I’ve litigated this issue now for several weeks. I can attest how frustrating it is when the government changes the policy, but can reimpose the restrictions at any point.

Third, Justice Gorsuch, who came to brawl, was far more cynical. He suggests that New York was trying to frustrate the Court’s jurisdiction. He wrote:

It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to acton their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.

Gorsuch observed (as I wrote in my post) that all of New York City may soon be placed under an orange regime.

Both Governor Cuomo and Mayor de Blasio have “indicated it’s only a matter of time before [all] five boroughs” of New York City are flipped from yellow to orange.

J. Skolnik, D. Goldiner, & D. Slattery, Staten Island Goes ‘Orange’ As Cuomo Urges Coronavirus ‘Reality Check’ Ahead of Thanksgiving, N. Y. Daily News (Nov. 23, 2020), https://ift.tt/2V3PR8p u-story-html. On anyone’s account, then, it seems inevitable this dispute will require the Court’s attention.

Now that the Court has ruled, I suspect New York City will be put back in code orange.

Fourth, Chief Justice Roberts would not have decided this case because, at present, the applicants are not subject to Code Red or Code Orange restrictions. He wrote:

I would not grant injunctive relief under the present circumstances. There is simply no need to do so. After the Diocese and Agudath Israel filed their applications, theGovernor revised the designations of the affected areas.None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions.

Thus, there is no need to decide these issues:

It is not necessary, however, for us to rule on thatserious and difficult question at this time. The Governor might reinstate the restrictions. But he also might not.And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things nowstand, however, the applicants have not demonstrated their entitlement to “the extraordinary remedy of injunction.” An order telling the Governor not to do what he’s not doing fails to meet that stringent standard.

That last sentence may be quoted in a California v. Texas opinion. Roberts can write.

Justice Breyer, also in dissent, argued there was no need to intervene.

Instead, the applicants point out that the State might reimpose the red or orange zone restrictions in the future.But, were that to occur, they could refile their applications here, by letter brief if necessary. And this Court, if necessary, could then decide the matter in a day or two, perhap seven in a few hours. Why should this Court act now without argument or full consideration in the ordinary course (and prior to the Court of Appeals’ consideration of the matter)when there is no legal or practical need for it to do so? I have found no convincing answer to that question.

I am skeptical the Court can act in a manner of hours. Days perhaps. But not hours. This is not like a death penalty case.

Justice Kavanaugh responded to the Chief Justice with respect to Court’s injunctive relief:

I part ways with THE CHIEF JUSTICE on a narrow procedural point regarding the timing of the injunctions. THE CHIEF JUSTICE would not issue injunctions at this time. As he notes, the State made a change in designations a few days ago, and now none of the churches and synagogues who are applicants in these cases are located in red or orange zones. As I understand it, THE CHIEF JUSTICE would not issue an injunction unless and until a house of worship applies for an injunction and is still in a red or orange zone on the day that the injunction is finally issued. But the State has not withdrawn or amended the relevant Executive Order. And the State does not suggest that the applicants lack standing to challenge the red-zone and orange-zone caps imposed by the Executive Order, or that these cases are moot or not ripe. In other words, the State does not deny that the applicants face an imminent injury today. In particular, the State does not deny that some houses of worship, including the applicants here, are located in areas that likely will be classified as red or orange zones in the very near future. I therefore see no jurisdictional or prudential barriers to issuing the injunctions now.

There also is no good reason to delay issuance of the injunctions, as I see it. If no houses of worship end up in red or orange zones, then the Court’s injunctions today will impose no harm on the State and have no effect on the State’s response to COVID–19. And if houses of worship end up in red or orange zones, as is likely, then today’s injunctions will ensure that religious organizations are not subjected to the unconstitutional 10-person and 25-person caps. Moreover, issuing the injunctions now rather than a few days from now not only will ensure that the applicants’ constitutional rights are protected, but also will provide some needed clarity for the State and religious organizations.

The last sentence is key. Now, New York will have to come up with a more narrowly tailored scheme if the city is placed back in Code Orange. The Houses of Worship will not have carte blanche to do as they wish.

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This post is the third installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.” Part II focused on Jacobson v. Massachusetts.

Diocese majority

The Chief Justices’s South Bay concurrence established a predictable, and easy to apply test with respect to the Free Exercise Clause. Justice Sotomayor described that test in her dissent:

South Bay and Calvary Chapel provided a clear and workable rule to state officials seeking to control the spread of COVID–19: They may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict.

The Diocese majority rejects the comparator approach. Indeed, the Court tweaks what “neutrality” means. I think this analysis may augur the future of Fulton. But the Court stops short of adopting Justice Kavanaugh’s “most favored right” standard. Let’s walk through the Court’s analysis.

First, the Court hints at Agudath Israel’s targeting arguments.

As noted by the dissent in the court below, statements made in connection with the challenged rules can be viewed as targeting the “‘ultra-Orthodox [Jewish] community.'” (Park, J., dissenting). But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment

But the Court quickly abandons the targeting argument. I had some concerns that the Court would adopt a Masterpiece-style analysis in light of Governor Cuomo’s comments about orthodox Jews. That ruling would not have extended beyond New York.

In dissent, Justice Sotomayor drew an analogy to Trump v. Hawaii. How could Cuomo’s statements be targeting if Trump’s statements were not targeting?

The Governor’s comments simply do not warrant an application of strict scrutiny under this Court’s precedents. Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,” originally conceived of as a “‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.'” Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 27). If the President’s statements did not show “that the challenged restrictions violate the ‘minimum requirement of neutrality’ to religion,” ante, at 2 (quoting Lukumi, 508 U. S., at 533), it is hard to see how Governor Cuomo’s do.

New York’s lawyer actually cited Trump v. Hawaii before the District Court to defend Cuomo’s statements.

Second, the Court found that New York’s orders are not “neutral.” Therefore Smith‘s rational basis test does not apply. Rather, strict scrutiny applies.

Because the challenged restrictions are not “neutral” and of “general applicability,” they must satisfy “strict scrutiny,” and this means that they must be “narrowly tailored” to serve a “compelling” state interest.

Third, the Court ruled that New York’s approach is not “narrowly-tailored.”

Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.”

Fourth, the Court tried to reconcile its opinion with South Bay. But it did so in a very subtle way. The majority explained that the New York orders were far more “restrictive” than the orders at issue in South Bay. But the Court did not say that the South Bay order was neutral. In other words, the per curiam does not embrace the core element of Chief Justice Roberts’s comparator approach:

[New York’s orders] are far more restrictive than any COVID–related regulations that have previously come before the Court,² much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.

FN2: See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) (directive limiting in-person worship services to 50 people); South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020) (Executive Order limiting in-person worship to 25% capacity or 100 people, whichever was lower).

This footnote may have been designed to coax the Chief to join the per curiam opinion. It would have given him an easy out. But he didn’t.

Justice Kavanaugh’s concurrence extended a similar olive branch to the Chief. He wrote:

To begin with, New York’s 10-person and 25-person caps on attendance at religious services in red and orange zones (which are areas where COVID–19 is more prevalent) are much more severe than most other States’ restrictions, including the California and Nevada limits at issue in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020). In South Bay, houses of worship were limited to 100 people (or, in buildings with capacity of under 400, to 25% of capacity). And in Calvary, houses of worship were limited to 50 people. New York has gone much further.

Fifth, the Court faults New York for not adopting “other less restrictive rules” to “minimize the risk to those attending religious services.” For example, “the maximum attendance at a religious service could be tied to the size of the church or synagogue.” The Churches and synagogues can seat hundreds of people. The Court writes, “It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other activities that the State allows.” Moreover, the Court placed the burden on New York to “show[] that public health would be imperiled if less restrictive measures were imposed.” Critically, the burden is on the government to justify this imposition on the Free Exercise of religion. The challengers do not bear that burden.

Sixth, the Court explains that other less-restrictive means–such as watching services on Zoom–are not acceptable.

And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.

This passage is a direct rebuke of Judge Easterbrook, who wrote that Zoom services are a suitable substitute:

Reducing the rate of transmission would not be much use if people starved or could not get medicine. That’s also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet. Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.

In June, I wrote:

“Churches can feed the spirit in other ways.” What hubris! Houses of worship have been feeding the spirit long before the ink on our Constitution dried. For sure, some houses of worship have moved onto Zoom, some with alacrity, others with regret. But Easterbrook should not pretend for a moment these virtual services are sufficient to “feed the spirit.”

Justice Barrett cast the deciding vote to render her former colleague’s conclusion bad law.

After eight months of judicial obeisance, this analysis is a breath of fresh air. When enumerated rights are at issue, the Government needs to do more than put forward implausible justifications for its policies. Now, judges will have to do better than wield a rubber stamp.

Seventh, the Court adopted the relevant test:

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.

“Serious examination.” That is the new test for all lower courts to follow. “Serious examination.”

Justice Kavanaugh’s concurrence

Justice Kavanaugh wrote separately. He largely reiterated his position from Calvary Chapel. I suspect Justice Alito, who wrote the principal Calvary Chapel dissent, wrote the Diocese per curiam opinion. Alito did not go along with Kavanaugh’s framework in Calvary Chapel, and he does not do so in Diocese.

First, Justice Kavanaugh repeats his view that the Free Exercise of Religion should be considered the “most favored” right.

The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884; see also Calvary, 591 U. S., at ___. (KAVANAUGH, J., dissenting from denial of application for injunctive relief ) (slip op., at 7).

Second, under Justice Kavanaugh’s approach, the government–and not the challenger–has the burden:

Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses.See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884. The State has not done so.

In dissent, Justice Sotomayor calls out Justice Kavanaugh for developing a new standard.

JUSTICE KAVANAUGH cites Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 537–538 (1993), and Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 884 (1990), for the proposition that states must justify treating even noncomparable secular institutions more favorably than houses of worship. Ante, at 2 (concurring opinion). But those cases created no such rule. Lukumi struck down a law that allowed animals to be killed for almost any purpose other thananimal sacrifice, on the ground that the law was a ” ‘religious gerrymander’ ” targeted at the Santeria faith. 508 U. S., at 535. Smith is even farther afield, standing for the entirely inapposite proposition that “the right of free exercise does not relieve an individual of the obligation tocomply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” 494 U. S., at 879 (internal quotation marks omitted).

Here, Justice Sotomayor is correct. I like Justice Kavanaugh’s approach, but he is moving beyond Smith.

Third, Justice Kavanaugh tries to extend an olive branch to Chief Justice Roberts. He agrees with Roberts’s dissent:

For those reasons, I agree with THE CHIEF JUSTICE that New York’s “[n]umerical capacity limits of 10 and 25 people . . . seem unduly restrictive” and that “it may well be thatsuch restrictions violate the Free Exercise Clause.”

And Justice Kavanaugh distinguished Diocese from South Bay and Calvary Chapel:

In light of the devastating pandemic, I do not doubt theState’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake. To reiterate, New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, and much more severe than the restrictions that most other States are imposing on attendance at religious services. And New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.

I think this conciliatory approach is far more effective than Justice Gorsuch’s hostility. Roberts is no longer the 5th vote. He does not need to be appeased, but he can be worked with.

Chief Justice Roberts’s dissent

The Chief’s opinion did not turn on the Free Exercise Clause. He focused mostly on the equities, which I will write about in a later post.

Yet, he seemed sympathetic to Diocese’s claim on the merits. He wrote:

Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause.

And the Chief favorably cites Justice Kavanaugh:

As noted, the challenged restrictions raise serious concerns under the Constitution, and I agree with JUSTICE KAVANAUGH that they are distinguishable from those we considered in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020). See ante, at 1, 3–4 (concurring opinion).

Justice Breyer’s dissent

Justice Breyer has a unique soft spot for people of faith. He seems to show some sympathy to the Diocese and Agudath Israel. He refers to the orders as “severe restrictions.” And he writes that the occupancy “numbers are indeed low.” But whether those low number is unconstitutional is “far from clear” in the unique context of this request for an injunction pending appeal.

Here, we consider severe restrictions. Those restrictions limit the number of persons who can attend a religious service to 10 and 25 congregants(irrespective of mask-wearing and social distancing). And those numbers are indeed low. But whether, in present circumstances, those low numbers violate the Constitution’s Free Exercise Clause is far from clear, and, in my view, the applicants must make such a showing here to show that they are entitled to “the extraordinary remedy of injunction.” Ibid. (internal quotation marks omitted).

How would Justice Breyer handle this case if it arose on a motion for summary judgment, rather than in an injunctive posture? I’m not sure.

Justice Sotomayor’s dissent seems at odds with Justice Breyer. I’m not sure how she, and Justice Kagan, joined the Breyer opinion. Justice Sotomayor wrote:

In truth, this case is easier than South Bay and Calvary Chapel. While the state regulations in those cases generally applied the same rules to houses of worship and secular institutions where people congregate in large groups, New York treats houses of worship far more favorably than their secular comparators. . . .

And whereas the restrictions in South Bay and Calvary Chapel applied statewide, New York’s fixed-capacity restrictions apply only in specially designated areas experiencing a surge in COVID–19 cases.

I will have much more to say about the case in a subsequent post.

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Officials in South Australia locked down the entire state after a man told them he got the coronavirus after picking up a takeout order at a pizza restaurant in an Adelaide suburb. Fearing they had a superspreader event on hand, authorities even banned outdoor exercise and dog walking. But three days into the lock down, officials lifted it. It turned out the man had lied. He actually worked at the restaurant along with a security guard who had tested positive for the virus. The guard also worked at a hotel where people who have tested positive for the disease as well as travelers entering South Australia must quarantine. “We were operating on a premise that this person had simply gone to a pizza shop, very short exposure, and walked away having contracted the virus,” said South Australia police commissioner Grant Stevens. “We now know they are a very close contact of another person who has been confirmed as being positive with COVID.”

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This post is the second installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.”

In the past week, I wrote two posts about Jacobson v. Massachusetts, based on my Harvard JLPP article. Those posts were widely read. I suspect the Gorsuch chambers found them useful. Justice Gorsuch’s reading of Jacobson tracks my own, almost to a tee. But the far more important development occurred in the dissent: Chief Justice Roberts acknowledged that his South Bay concurrence didn’t actually rely on Jacobson‘s constitutional framework. Hallelujah.  How many district court judges read South Bay as if it adopted Justice Harlan’s approach to constitutional scrutiny? These opinions may represent the single greatest misreading of a precedent in modern history.

Let’s start with Justice Gorsuch’s analysis. First, Gorsuch recited the actual facts of Jacobson. There was no forcible mandate to be vaccinated. People could instead choose to pay a $5 fine. Indeed, Gorsuch converts the $5 to present-day value as $140. (I offered the same calculation, but I rounded up to $150.)

Second, Gorsuch explains that “Jacobson predated the modern tiers of scrutiny, this Court essentially applied rational basis review to Henning Jacobson’s challenge to a state.” Indeed, the phrase “rational basis review” did not exist in the early 20th century, though the Court would sometimes use the phrase “rational.”

Third, Gorsuch writes that Jacobson asserted what we would now call “implied ‘substantive due process’ right to ‘bodily integrity’ that emanated from the Fourteenth Amendment.” Gorsuch’s choice of the verb “emanated” was meant to ridicule Griswold v. Connecticut. And he completes the phrase in the next sentence:  “Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise.” Of course, the crux of Griswold was that the right to privacy was an emanation from a penumbra from “textually explicit rights” in the Bill of Rights. Justice Douglas tried mightily to keep his opinion within the Footnote Four framework. He failed. I find it significant that the former Kennedy clerk offers this rebuke of substantive due process. This language will be quoted for years to come.

Fourth, Gorsuch wrote that the burden faced by Jacobson was “avoidable and relatively modest.” He could “accept the vaccine, pay the fine, or identify a basis for exemption.” This law, Gorsuch found, “easily survived rational basis review, and might even have survived strict scrutiny, given the opt-outs available to certain objectors.” I agree.

Fifth, he turns to New York’s law.

. . . the State has effectively sought to ban all traditional forms of worship in affected “zones” whenever the Governor decrees and for as long as he chooses. Nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights. In fact, Jacobson explained that the challenged law survived only because it did not “contravene the Constitution of the United States” or “infringe any right granted or secured by that instrument.”

I would hesitate before trying to reconcile Jacobson with modern precedent. I think it is enough to say Jacobson is a 115-year old opinion that predates modern constitutional law. Leave it there. Don’t try to graft Jacobson on modern doctrine.

Sixth, Gorsuch recognizes that no Justice disputes his reading of Jacobson.

Tellingly no Justice now disputes any of these points. Nor does any Justice seek to explain why anything other than our usual constitutional standards should apply during the current pandemic.

He is right. The 100+ judges who reflexively followed Jacobson should carefully reconsider their actions. They erred, greatly.

Seventh, Gorsuch addresses Chief Justice Roberts’s South Bay concurrence

In fact, today the author of the South Bay concurrence even downplays the relevance of Jacobson for cases like the one before us. Post, at 2 (opiniono f ROBERTS, C. J.). All this is surely a welcome development. But it would require a serious rewriting of history to suggest, as THE CHIEF JUSTICE does, that the South Bay concurrence never really relied in significant measure on Jacobson. That was the first case South Bay cited on the substantive legal question before the Court, it was the only case cited involving a pandemic . . .

This argument is weak. Roberts wrote a single sentence that cited Jacobson in a very narrow context. He did not adopt Harlan’s constitutional framework. The Chief torches Gorsuch in response. As much as I criticize the Chief, he never misses a kill shot he chooses to fire. He is still the Court’s best technical writer.

The concurrence speculates that there is so much more to the sentence than meets the eye, invoking—among other interpretive tools—the new “first case cited” rule.

The fault does not lie with Roberts. It lies with the lower courts that cited it improperly. Last week, I wrote, “the South Bay concurrence has taken on a life of its own, far beyond the Chief’s intentions.” Roberts, in his own way, seems to express this view. I think Roberts was annoyed that so many judges read his shadow docket ruling as gospel. He wrote:

But while Jacobson occupies three pages of today’s concurrence, it warranted exactly one sentence in South Bay. What did that one sentence say? Only that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.'” South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring) (quoting Jacobson, 197 U. S., at 38). It is not clear which part of this lone quotation today’s concurrence finds so discomfiting. The concurrence speculates that there is so much more to the sentence than meets the eye, invoking—among other interpretive tools—the new “first case cited” rule. But the actual proposition asserted should be uncontroversial, and the concurrence must reach beyond the words themselves to find the target it is looking for.

And Gorsuch reaches “beyond the words” to the lower courts that treated the concurrence as gospel:

. . . many lower courts quite understandably read [South Bay’s] invocation as inviting them to slacken their enforcement of constitutional liberties while COVID lingers. See, e.g., Elim Romanian Pentecostal Church v. Pritzker, 962 F. 3d 341, 347 (CA7 2020) [Easterbook, J.]; Legacy Church, Inc. v. Kunkel, ___ F. Supp. 3d ___, ___ (NM 2020).

Judge Easterbrook, for example, carried the Chief’s analysis to its logical conclusion.

Eighth, Justice Gorsuch trains his fire on the lower court judges who exercised judicial restraint:

Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.

The Chief is not happy with Gorsuch’s rhetoric. He fires back:

To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.

Gorsuch needs to tone down his brash style. He is not impressing anyone with these barbs. I can see the Roberts-Gorsuch relationship becoming like a conservative version of the Frankfurter-Black feud. Restraint v. activism. Functionalist v. Textualism. And so on. Justice Kavanaugh’s conciliatory approach will be far more effective over the long term.

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