“Shadow Docket” Allows SCOTUS To Break Its Own Rules And Radically Redefine Religious Liberty

  • The Supreme Court issued a 5–4 decision in Tandon v. Newsom blocking California’s pandemic-related ban on religious gatherings in private homes. 
  • SCOTUS created this sweeping new rule through its shadow docket—cases decided with minimal briefing and no oral argument outside the court’s normal procedure.
  • Chief Justice Roberts dissented, as did the three liberal justices, making Tandon yet another COVID decision in which Justice Amy Coney Barrett’s vote was key.

Mark Joseph Stern from Slate writes:

“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 pedicure, 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…”

See full story here.



Categories: Government, Politics

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