Religion and the lawbreaking Supreme Court

Lawyers sometimes irritate other people with their persnicketiness about technicalities.  But scrupulousness about legal detail is what gives courts their authority. It is big news if the Supreme Court ignores statutory limits on its own power.

Since Justice Amy Coney Barrett replaced Ruth Bader Ginsburg, the Court has repeatedly issued orders without legal authorization. This was particularly true in the cases involving religion and COVID-19.

The pertinent technicality is a provision in the Judiciary Act of 1789. It allows the Supreme Court to issue emergency injunctions in cases where the lower courts, which inevitably are more familiar with the facts of the cases before them, have refused to do so. Cognizant of the danger of uninformed meddling, the Court has for decades interpreted its power very narrowly. In 1968, Justice Potter Stewart declared that it should be used “sparingly and only in the most critical and exigent circumstances.” In 1972, Justice William Rehnquist observed that the right to relief must be “indisputably clear.” Justice Antonin Scalia quoted both of these passages with approval in 1986.  The full Court likewise held in 2001 that this relief “is appropriate only if the legal rights at issue are indisputably clear.”

In the cases involving COVID-based restrictions on religious gatherings, however (crowded churches had sometimes become vectors for spreading disease), the Court used its emergency powers aggressively as soon as Barrett joined the Court. Its orders were based on new, previously unheard-of rules. Chief Justice Roberts had previously observed that the question of how to handle a pandemic is “a dynamic and fact-intensive matter subject to reasonable disagreement.” Rights can’t be “indisputably clear” when the Court just made them up and the facts are disputed.

In an important forthcoming book, “The Shadow Docket,” Prof. Stephen Vladeck shows how “indefensibly lawless” the Court’s new use of its injunction power is. He nicely anatomizes its violations of the rules of the 1789 Act. It’s not just religion: The Court uses this power in cases of redistricting, eviction, executions and the Clean Water Act. 

In these cases, there has been no trial and the state has had no opportunity to develop an evidentiary record. The Court scolds lower courts for failing to heed its earlier injunctions — injunctions issued without any opinions explaining them, which makes them hard to heed. Justice Elena Kagan observed that henceforth “officials must guess which restrictions this Court will choose to strike down.” Vladeck writes that the Court was “oblivious to the irony of complaining about a lower court’s failure to apply an analytical framework that the Court itself had never articulated.”

There was a lot of religious resistance to efforts to contain COVID. The Court finally refused to support it when presented with vaccine-refusing health care workers. Justices Thomas, Alito and Gorsuch wanted to let those workers go back to their jobs in hospitals and nursing homes. Justices Barrett and Kavanaugh disagreed, noting that the emergency power involved “a discretionary judgment about whether the Court should grant review in the case,” which would force the court to make a preliminary judgment on the merits “on a short fuse without benefit of full briefing and oral argument.” That was of course true of all the earlier orders they had supported.

Vladeck thinks their hesitation might have been “a tacit concession that they had exercised that discretion a bit too permissively over the previous eleven months.” But there is a more disturbing possibility that what restrained them was precisely their view of the merits. Vaccine refusal was by far the most extreme religious liberty claim the Court heard, threatening to expose already frail and sick patients to COVID. Neil Gorsuch made the astounding claim that preventing contagious, deadly diseases is not a sufficiently compelling interest to justify burdens on religious dissenters. He also proposed that, because some people have been excused from vaccination for medical reasons (a tiny number have life-threatening allergic reactions), “the most narrowly tailored means” to achieve herd immunity “is to re­strict vaccine exemptions to a particular number divided in a nondiscriminatory manner between medical and religious objectors.” 

Faced with people whom no ethical doctor would vaccinate, Gorsuch thinks that the fair solution is to force vaccines on them to make room for the religious. (That wouldn’t even contain disease: Religious vaccine resistors tend to be geographically clustered, to spread the disease among themselves and so to present far greater risks than those with medical excuses.)

It would be nice if we knew that Barrett and Kavanaugh reject Gorsuch’s position. But if that’s what stopped them from joining him, then Vladeck is too optimistic in suggesting that the Court was beginning to respect the legal limits on its power. They just happened to decide, in this case, to exercise their unconstrained power in a different way. Vladeck notes: “As for what would govern that discretion going forward, the Court’s two newest justices wouldn’t say.”

This Court feels free to issue orders to public officials based on its gut feelings, seemingly undisturbed by exposure to evidence. Its lack of authority means that it is not merely misinterpreting the law. It is breaking it, ignoring the rules that are the source of its authority.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press).  Follow him on twitter @AndrewKoppelman.