The Most-Favored Right: COVID, the Supreme Court, and the (New) Free Exercise Clause
“[R]eligious liberty is fast becoming a disfavored right.” — Justice Samuel Alito, November 12, 2020.
“[A]s days gave way to weeks and weeks to months, this Court came to recognize that the Constitution is not to be put away in challenging times, and we stopped tolerating discrimination against religious exercises.” — Justice Neil Gorsuch, December 13, 2021.
On Monday, May 4, 2020, the Supreme Court did something it had never done before: It heard oral argument by telephone. Traditionally, the Court was the one institution in Washington that refused to close—even when, as seems to happen nearly every winter, inclement weather shuts down the rest of the federal government. Among other things, the Court’s obstinacy has led to some well-worn anecdotes about lawyers scheduled to argue a case on snow days. Lacking any means of reaching the Court’s Capitol Hill building, counsel would often trek through snowdrifts in their formal attire to the nearest Justice’s house just so that they could catch a ride downtown. (The real challenge, as it turns out, was getting a ride home afterwards.)
But now, it wasn’t weather that forced the Justices to postpone their regularly scheduled March and April argument sessions for the first time in over a century; it was the COVID-19 pandemic. Starting with a relatively straightforward dispute about whether the company “Booking.com” could legally trademark its rather generic corporate name (the Court would eventually say yes), the Justices heard arguments and handed down decisions in argued cases from afar for the rest of the October 2019 Term and the entire October 2020 Term. They would not conduct business in person again for over a year—and would not physically return to the bench until October 2021.
As with everyone else, COVID necessitated changes to the Justices’ longstanding habits and internal procedures. But far more importantly, it provoked an array of novel legal questions about just how far local and state governments could go in responding to a global public health emergency. The Supreme Court had not addressed that topic in detail since a 1905 case upholding compulsory vaccinations in response to a smallpox epidemic. Some of those questions arose in the context of COVID-inspired changes to local and state election laws. Others stemmed from prisoners challenging whether corrections facilities were doing enough to prevent the spread of the virus. But it was in cases involving religious liberty objections to state orders shuttering houses of worship or otherwise restricting public and private gatherings where the Court was the most active—relying on the so-called “shadow docket” to hand down decisions that rested on both procedural and substantive innovations.
In the election cases, the Court shied away from broad, forward-looking pronouncements in the run-up to Election Day 2020. After Election Day, it stayed out of those disputes entirely. Ditto the prison cases, where the Court repeatedly refused to interfere with state and federal prisons even as conditions deteriorated during the pandemic. But where applicants raised claims grounded in religious liberty, the same five Justices consciously used the shadow docket to meaningfully alter the substantive scope of the Constitution. In the end, these efforts resulted in an understanding of the First Amendment under which far fewer government regulations will be allowed to burden religious practice—even unintentionally. Effecting such a monumental shift in constitutional doctrine through the shadow docket would be problematic enough in the abstract. But in the religion cases, specifically, the five-Justice majority went even further—willfully defying limits on the Court’s power to issue emergency relief that the Justices themselves had long traced to the statute authorizing such relief, the All Writs Act.
Perhaps most importantly, though, as opposed to the slow but steady shifts in both the volume and substance of other shadow docket rulings in recent years, the turnabout in religious liberty cases happened virtually overnight—and was made possible only by the unexpected death of Justice Ruth Bader Ginsburg in September 2020 and her replacement one month later by Justice Amy Coney Barrett. Barrett would not only write her first opinion on the Court in one of the COVID-related shadow docket religion cases; her vote allowed opinions that four other Justices had expressed as dissents as late as July 2020 to become the law of the land within a month of her confirmation.
Throughout the Supreme Court’s October 2020 Term, it was on the shadow docket, and not the merits docket, where the impact of Justice Barrett’s confirmation was most visible. And that impact was reflected most visibly in her facilitation of a dramatic expansion in the Supreme Court’s interpretation of the Constitution’s Free Exercise Clause—a shift that, as subsequent decisions have made clear, was limited both to the procedural context of the Court’s shadow docket and the substantive context of the Free Exercise Clause.
This paper sets out to both document and criticize these developments. Even to those who support the Court’s new free exercise jurisprudence (or who believe it still doesn’t go far enough to protect religious liberty), the unique procedural and substantive context in which it was enunciated should raise concerns about how the Justices are handling “emergencies”—and how they will do so going forward.
