The United States Supreme Court is receiving criticism not only on the merits of a new decision, but for the process used to reach it.
"Late on Friday night, the Supreme Court issued a 5–4 decision in Tandon v. Newsom, which blocked California's COVID-related ban on religious gatherings in private homes. Chief Justice John Roberts dissented, as did the three liberal justices, making Tandon yet another COVID decision in which Justice Amy Coney Barrett's vote made the difference," Slate's Mark Joseph Stern reported Monday.
"Although the conservative majority's decision was unsigned and ran just four pages long, it radically altered the law of religious liberty. Since 1990's Employment Division v. Smith, the Supreme Court has not interpreted the First Amendment's free exercise clause to require religious exemptions to laws that don't discriminate against religion. In Tandon, however, the majority effectively overturned Smith by establishing a new rule, often called the 'most favored nation' theory. Under this doctrine, any secular exemption to a law automatically creates a claim for a religious exemption, vastly expanding the government's obligation to provide religious accommodations to countless regulations. In Tandon, for instance, the Supreme Court held that California had to let people gather indoors for Bible study because it allowed them to gather indoors to get a haircut, eat, or take a bus; if Californians can get a pedicure, they must also be permitted to spend hours in close quarters discussing the Bible," Stern explained.
"And the Supreme Court created this sweeping new rule through its shadow docket—those cases decided with minimal briefing and no oral argument outside the court's normal procedure," he noted.
Stern interviewed University of Texas School of Law Professor Steve Vladeck about the use of the shadow docket.
"I think Friday night's ruling drives home exactly why the rise of the shadow docket is so problematic. To be a little nerdy for a second, what the Supreme Court did on Friday was issue an injunction pending appeal. This is an extraordinary form of relief. Unlike when the court issues a stay—where it says, hey, lower courts we're putting your decision on hold—here the court is acting directly against the government. It's directly enjoining Gov. Newsom when lower courts have refused to do so," Vladeck explained.
"As the Supreme Court has said for decades, its authority to issue that form of relief is very limited. There's a very widely cited in-chambers opinion by Justice Antonin Scalia from 1986 where he says the court is only supposed to issue such relief "sparingly, and only in the most critical and exigent circumstances," where 'the legal rights at issue are indisputably clear.' It's the 'indisputably clear' part that makes what Jim said so important. Everyone understands that the court made new law on Friday, that the court changed the scope and meaning and applicability of the free exercise clause," he explained. "Folks are going to disagree about whether or not this new approach is a good one. My point is, this is not something the court is allowed to do in a shadow docket ruling like this. Its own precedents preclude it from making new law in this context because, by definition, a newly minted right cannot have been 'indisputably clear.'"
Read the full report.
(EDITOR'S NOTE: The author of this piece worked campaigns for Gavin Newsom when he was on the Board of Supervisors in San Francisco.)