The Most-Favored Right: COVID, the Supreme Court, and the (New) Free Exercise Clause
44 PagesPosted: 17 Dec 2021Last revised: 4 Jan 2022
Date Written: December 16, 2021
Abstract
This paper, prepared in conjunction with the Pacific Legal Foundation's Center for Separation of Powers and NYU Journal of Law and Liberty's February 2022 symposium, "Responding to Emergency: A Blueprint for Liberty in a Time of Crisis," looks at how the U.S. Supreme Court has used its "shadow docket" to expand constitutional protections for religious liberty during — and in direct response to — the COVID pandemic. As it documents, the Supreme Court since Justice Barrett's confirmation has used emergency orders to effect a subtle but significant shift in the meaning of the Free Exercise Clause, in some cases by creating novel forms of emergency relief, and in others by ignoring well-established limits on the Court's statutory authority to issue emergency writs of injunction pending appeal. What's more, these rulings came even as the Court (1) turned away most other non-religion-based challenges to COVID restrictions; and (2) issued narrower rulings in religious liberty cases on its merits docket.
The Court never explained why religious liberty claims deserved such procedural and substantive favoritism. But some of the Justices' separate opinions have defended these rulings on the ground that the relevant government officials were hiding hostility to religion behind otherwise permissible restrictions. As the paper concludes, insofar as that is the most plausible explanation for the Court's approach, it suffers from three distinct flaws:
First, and most importantly, it assumes bad faith on the part of any number of government actors — bad faith that is, at best, inferred from circumstantial “evidence” in proceedings in which there is little to no opportunity to develop a factual record. Indeed, the Supreme Court is only asked to grant an emergency injunction pending appeal when both lower courts have refused to do so —usually based upon factual findings that are supposed to be reviewed on appeal only for clear error. The "shadow docket" is an especially poor context in which such aspersions should be cast.
Second, and related, there is a telling contrast between these same Justices’ willingness to carefully scrutinize the motives of government actors when it comes to claims of religious liberty in the COVID context and their unwillingness to do so when it came to President Trump’s travel ban. Recall that the central constitutional claim in Trump v. Hawaii was that the President had singled out the countries at issue because they were predominantly Muslim—a claim that relied upon public statements by President Trump to no less an extent than, for instance, Justice Gorsuch's Dr. A dissent relied upon public statements by Governor Hochul. Perhaps the implication is that governments require even stronger justifications (or nobler motives) for acting in a manner that impedes religious liberty during a pandemic than at other times? If that’s the theory, none of the Justices have ever publicly endorsed it.
And third, even if that is the best way of reconciling the Supreme Court’s unique treatment of religious liberty in COVID cases with its other jurisprudence, it’s normatively indefensible on its face. Ordinary modes of judicial review should not be abandoned during a public health crisis — in either direction. Thus, although governments should not be entitled to meaningfully more deference when adopting public health measures in response to the COVID pandemic, they should not be entitled to meaningfully less deference, either.
For those to whom religious liberty predominates over other constitutional protections, the Court's procedurally flawed expansion of the Free Exercise Clause may seem worth the price. But for those who care about the Court as an institution, and who believe that charges of inconsistency leveled by Justice Kagan in her Whole Woman’s Health dissent are not to be taken lightly, the new majority’s actions in religious liberty cases since November 2020 give more than a little reason for pause — regardless of whether, on the merits, they’ve gotten those rulings “right.”
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