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.
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 pedicures, they must also be permitted to spend hours in close quarters discussing the Bible. 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.
On Monday, I spoke with University of Texas School of Law professor Steve Vladeck, a renowned critic of the shadow docket, and Lewis and Clark Law School professor Jim Oleske, an expert on religious liberty jurisprudence, about Friday’s decision and its departure from all known rules of Supreme Court procedure. Our conversation has been edited for length and clarity.
Mark Joseph Stern: Jim, you’ve said Tandon begins with a “whopper.” What is it?
Jim Oleske: In the very beginning, the court said its prior decisions had “made the following points clear.” It then laid out the “most favored nation” theory of religious exemptions. The principal authority cited is the Roman Catholic Diocese v. Cuomo decision from this past fall—in which the court did not adopt that theory! Instead, the court said that New York had singled out religion for disfavored treatment, which would be consistent with Smith. It was only in separate opinions that various justices talked about “most favored nation” theory explicitly—the same justices who were talking about it in dissents over the summer before Justice Amy Coney Barrett had joined the court.
How does this new theory conflict with Smith?
Oleske: Smith says the free exercise clause of the First Amendment protects against the government targeting religious practice for disfavored treatment, but does not grant a right to exemptions from general law. Almost immediately after Smith, there were efforts to read into it a broader “most favored nation” theory that said: Any time the government grants an exemption to a law, it has an obligation to grant a religious exemption, too, unless the government meets strict scrutiny. But that was not the law of the land until Friday night.
Steve Vladeck: 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.
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. 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.”
How does this turbocharged use of the shadow docket hurt the judiciary, in terms of its legitimacy and its ability to function?
Vladeck: The justices think that the signals they’re sending through unsigned or very short opinions are somehow so clear as to create precedent that binds lower courts. That’s a preposterous way to run a railroad. The justices are expecting hardworking lower court judges to read between the lines when they themselves can’t be bothered to provide explanation. One of the things I found most galling about Friday night’s decisions is that it chastises the 9th Circuit for refusing to read the justices’ minds, for refusing to properly understand the import of four prior unexplained orders. Which, to me, is more than a little bit of chutzpah.
The larger problem is that there’s no scenario where the court can do this in all cases. It is not set up to take every single significant constitutional question at the outset of litigation. It is inevitable that we’re going to have “most favored nation” constitutional claims when it comes to the shadow docket. We’re going to have some parties and some claims that get preferential procedural treatment from the majority at the expense of others. Look, for example, at how aggressive the Supreme Court has been in pushing back against state COVID restrictions insofar as they affect religious practice, and how deferential they’ve been with regard to COVID restrictions as they affect prisoners. It creates the perception that the court is playing favorites with litigants and claims.
What do you say to those who think critics of these COVID decisions are really just hostile to religious liberty?
Vladeck: Friday night was the seventh time this term that the Supreme Court has issued an emergency injunction pending appeal. All seven were in COVID free-exercise cases. The first was in November, in Roman Catholic Diocese. Before November, it had been five years since the court had issued an emergency injunction. Those who like these decisions are getting increasingly comfortable with the court flouting and defying its own internal standards and rules for this kind of relief simply because they like the result. In the process, they attack critics for being insufficiently sensitive to religious liberty. And that’s a preposterous claim. These rules exist for a reason. If the justices are going to defy them or change them, the very least they can do is tell us that.
Oleske: I actually think the court should revisit Smith. If the court’s going to revisit its free exercise jurisprudence, I’m inclined to like that, because I’ve argued for it. But the way they’re doing it—creatively reinterpreting Smith in a way that cannot be reconciled with how the court has interpreted Smith in the past—is just inexcusable. Even people who think there is a constitutional right to religious accommodations should be very troubled.
Jim, as a critic of Smith, what do you think of the “most favored nation” theory that’s now the law?
Oleske: I’m inclined to agree with prior critics that the “most favored nation” theory is a really bizarre way to protect minority religions against indifference and neglect. Why adopt a rule where protection for minority religions only exists out of the luck of the draw when the government happens to have made an exception to a rule for some secular reason? It doesn’t serve the underlying religious liberty value.
So, on the merits, the theory is problematic. It was also specifically crafted to get around Smith by one of Smith’s fiercest critics, Douglas Laycock. And Laycock now argues that instead of using the “most favored nation” theory, the court should just overrule Smith because of the problems with implementing the theory. So the very person who originated the “most favored nation” theory, who has been its most vocal champion for three decades, has, in his most recent filing with the Supreme Court, said, no, instead, you should just overturn Smith.
What did you think of Justice Elena Kagan’s dissent, which Sonia Sotomayor and Stephen Breyer joined?
Oleske: What’s interesting to me is that Justice Kagan doesn’t squarely take on the question of whether any version of the “most favored nation” theory is viable. Justice Kagan may not want to resolve this profound issue through the shadow docket when there is a pending merits case, Fulton v. Philadelphia, asking the Supreme Court to revisit its free exercise doctrine. Maybe that’s why she’s being somewhat vague.
Vladeck: I think on the procedural point, the dissent pulls its punches. There is that beautiful but cryptic clause that the majority is disregarding “law and facts alike.” But Justice Kagan never really drills down on exactly what is procedurally problematic about the case. This is part of a trend where, among the progressives, only Justice Sotomayor has been willing to publicly criticize the conservative majority’s growing use of the shadow docket. Sotomayor has done it multiple times. But there has yet to be a single instance where Kagan or Breyer openly criticize the court’s use of the shadow docket, or even sign onto an opinion openly criticizing it. That’s unfortunate; it’s way too easy for people to be unfairly and unreasonably dismissive of Sotomayor when she’s alone on this point. If Kagan and Breyer are saving their fire for an especially egregious case, I would think Friday night was it.