On the Supreme Courtroom’s shadow docket, the regular quantity of pandemic circumstances continues

As the Supreme Court expires for the holiday break, one thing that hasn’t slowed is the flow of litigation resulting from the COVID-19 pandemic.

In November and December, the court dealt with seven urgency motions related to COVID-19, six challenging religious institutions against government orders to restrict crowds, and one dealing with prisoners’ exposure to the coronavirus.

All cases followed a procedural model that is now known. Like the many other pandemic-related cases that the Supreme Court received in 2020, these most recent cases have been dealt with in what is known as the Shadow Act – the growing category of emergencies that are resolved without the full treatment of thorough briefing and oral discussion. Despite the foreshortened consideration, the judges had quite a lot to say in these cases. In three of the seven cases decided in November and December, the judges produced 51 pages of statements. Add that number to the 45 pages produced May through October in COVID-related prison and religion cases, and the total is close to 100 pages, an extensive piece of work that has been done in the Shadow Log.

In addition to the religious and prison cases, since mid-October the court has processed at least a dozen urgency motions from Republicans alleged to have had voting irregularities due to changes in electoral practice due to COVID-19. The court did not grant relief in any of these cases.

Among the religious cases, the most significant was the Roman Catholic Diocese of Brooklyn versus Cuomo, which was decided on late November 25, just before the calendar turned to Thanksgiving. The 5-4 judgment resulted in an unsigned majority opinion and five separate opinions by the judges, 33 pages in total.

The Catholic Diocese of Brooklyn challenged an order from New York Governor Andrew Cuomo (D) limiting the number of people allowed to attend church services. The Church complained that in the areas of greatest COVID risk, marked as red zones, Cuomo’s order limited worship to 10 people each, while businesses deemed essential by law had no such limits. The diocese argued that this restriction violated the First Amendment guarantee of the “free practice” of religion.

The Supreme Court agreed to the diocese and issued an injunction to block Cuomo’s command. The majority said the regulations “select places of worship for particularly harsh treatment.” The result was a significant change in direction. In May and July, the court denied urgency motions to lift the Church’s capacity limits in California, Nevada, and Illinois. When votes were recorded in these cases they were 5-4 in favor of the states, with Justice Chief John Roberts voting with the four Liberal justices. However, after Justice Ruth Bader Ginsburg, who voted in those majorities, passed away in September and was replaced by Justice Amy Coney Barrett in late October, the court gained a fifth member who tended to join groups who made claims in COVID-related emergencies on religious freedom raise litigation.

In the Roman Catholic diocese, the unsigned majority opinion was followed by a series of strongly worded statements by judges who write in their individual capacity. Judge Neil Gorsuch wrote an assent, stating that the government “is not free to ignore the first amendment in a time of crisis”. He suggested that “certain states appear to have ignored this basic requirement” and accused the dissenting judges of creating uncertainty about the role of the constitution during the pandemic. Judge Brett Kavanaugh agreed that the court should intervene to protect religious freedom, writing that “respect for the judiciary in an emergency or crisis does not mean a full abdication of the judiciary”.

As in similar cases in the spring, Roberts broke away from his conservative colleagues – but this time he disagreed. He wrote that Cuomo had already changed the orders, removing the need for the court to rule on the Catholic diocese’s complaint. And in an overt response to Gorsuch’s criticism, Roberts defended the goodwill of the other dissenters: Judges Stephen Breyer and Sonia Sotomayor, who both wrote separate dissidents who were joined by Justice Elena Kagan. Breyer argued that the diocese had failed to demonstrate the need for an immediate injunction, and Sotomayor wrote that blocking emergency orders like Cuomo’s “can only exacerbate the suffering of the nation.”

It is unclear whether the court’s decision will be the final say in this case. The injunction remains in effect while the case continues to be heard in the U.S. Circuit 2 Court of Appeals and may return to the Supreme Court at a later date as an appeal against a future Circuit 2 decision.

Still, the Roman Catholic diocese has already emerged as an important precedent for similar cases. At the same time as the Roman Catholic Diocese’s judgment was being passed, the court also ruled in favor of Agudath Israel, an Orthodox Jewish community with synagogues in Brooklyn, Flushing, and Far Rockaway, New York. Agudath Israel challenged the same order from Cuomo, and the court scored the same 5-4 result against the governor’s policies, with four judges objecting “for the reasons set out against Cuomo in the Roman Catholic Diocese of Brooklyn.”

Meanwhile, the court faced an emergency request from Harvest Rock Church, a Christian ministry with multiple locations in California, including its base in Pasadena. The Church challenged the capacity limits imposed by Governor Gavin Newsom (D). On December 3, the judges returned the case, with no recorded disagreement, to a federal district court that had previously upheld Newsom’s policies. The judges ordered the district court to reconsider its decision in the light of the Roman Catholic diocese.

The judges took a similar approach in two orders the court issued on December 15. In the High Plains Harvest Church v Polis case, a challenge to attendance restrictions for churches in Colorado, the court sent the case back to the lower courts for the Roman Catholic diocese to decide. Kagan, along with Breyer and Sotomayor, wrote a dissenting opinion, noting that Colorado had already changed the restrictions. And in Robinson vs. Murphy, a challenge to New Jersey attendance restrictions put in place by a church and synagogue, the court followed the same course. In the absence of any differences of opinion, the judges ordered the lower courts to reconsider New Jersey policy in the light of the Roman Catholic diocese.

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

Various religious freedom issues arose in an urgent case against Beshear by the Supreme Court on December 17th at the Danville Christian Academy. Due to disagreements recorded only by Gorsuch and Justice Samuel Alito, the court declined to interfere with an order to temporarily shut down schools issued by Kentucky Governor Andy Beshear, D. A private religious school had challenged the order as violating the school’s religious freedom to structure its own activities, but the court found that the order to close is imminent. As a result, the court said there was no need to consider the challenge now – but it left the school with an option to go back to court should Beshear issue another school closure order. Gorsuch disagreed, arguing that the US Circuit Court of Appeals used the wrong legal standard in its decision to maintain the restriction, thereby devaluing Danville Christian’s rights. Alito agreed that the court should have ruled in favor of the school.

A final case related to COVID in the past two months concerned detention conditions amid the pandemic. In Valentine v. Collier, the court refused for the second time all emergency aid to inmates at the Wallace Pack Unit, a prison in Navasota, Texas. The prison houses significant numbers of elderly patients at higher risk for COVID-19, which has been reported to be easily present in the facility. In September, a federal district court ordered security measures for the prison, but the U.S. 5th Circuit Court of Appeals upheld the order while prison officials appealed. Two prisoners petitioned the Supreme Court for an emergency ruling resuming the District Court order while the litigation continued. On November 16, a majority in the court denied any relief. In a dissent by Kagan, Sotomayor wrote that the prison was “devastated by COVID-19”. Sotomayor said the detainees were unable to protect themselves due to the nature of the detention conditions and asked the court to act, but to no avail.

Posted in Featured, Emergency Complaints, and Applications

Recommended citation:
Stephen Wermiel, On the Supreme Court Shadow Record, the steady volume of pandemic cases continues.
SCOTUSblog (December 23, 2020, 3:16 pm), – continues/

Leave a Comment