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Shortly after midnight on Thanksgiving, the Supreme Court decided Roman Catholic Diocese of Brooklyn v. Cuomo. This decision ushered in the new Roberts Court. The 5-4 Court ruled unconstitutional New York's occupancy limits on houses of worship. Justice Barrett cast the deciding vote. I have now finished reading the per curiam opinion, Justice Gorsuch's concurrence, Justice Kavanaugh's concurrence, Chief Justice Roberts's dissent, Justice Breyer's dissent, and Justice Sotomayor's dissent. I plan to write several posts discussing various aspects of the decision.
Here, I will begin with an ending. Chief Justice Robert's South Bay concurrence is no longer a super-precedent. Really, it was never even a precedent in the first place. Yet, courts had cited it 114 times in the past six months. But Diocese will likely be the last citation. Courts can no longer look to the Chief's opinion as the definitive statement for pandemic cases. I'm sure some will try. And there are five votes to reject those efforts.
In South Bay, Chief Justice Roberts wrote that that the Supreme Court should not grant an injunction pending appeal unless the "'the legal rights at issue are indisputably clear' and, even then, 'sparingly and only in the most critical and exigent circumstances.'" The Diocese per curiam provided a more traditional, and easier-to-satisfy test:
The applicants have clearly established their entitlement to relief pending appellate review. They have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.
"Likely to prevail" is a lot easier to satisfy than "indisputably clear" right to a remedy. Really, South Bay was never designed for the lower courts to apply. It was always a standard for a Supreme Court injunction pending appeal. But lower courts reflexively cited that standard.
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