A lack of courage continues to be the central flaw in Chief Justice Roberts’s judicial character.
Late on Friday, the Supreme Court, in Tandon v. Newsom, granted an emergency order against California’s ban on home prayer gatherings of more than three households. The decision broke no new legal ground. This was a straightforward application of the same rule it applied in February against California’s broad ban on indoor religious services, and in November against New York’s church-capacity restrictions: State lockdown rules may not treat religious worship worse than it treats commerce. Five conservative justices have been in the same majority in all three cases, and three liberals have dissented in all three; Chief Justice Roberts has been the one swing vote, siding with the majority in February but not in the other two cases. The only issue in Tandon was picking the right point of comparison for home religious gatherings. The majority found that California treated those gatherings more restrictively than business gatherings; the dissent argued that California treated home prayer gatherings the same as home social gatherings.
There were two interesting parts to the Court’s order. One is that the unsigned per curiam opinion, endorsing the view of Justice Gorsuch’s concurring opinion in the February case, concluded that the case was not moot — even though the ban had been rolled back — because California’s record showed that it could not be trusted not to reimpose the same restrictions:
Although California officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of “moving the goalposts” retain authority to reinstate those heightened restrictions at any time.
This should raise our eyebrows a bit, because it is typically the Court’s job to decide cases based upon the same rules, evenhandedly applied to everyone in neutral fashion. A number of the controversies of recent years have ended up being implicitly or explicitly about mistrust of various government litigants, from Resistance judges ruling that Donald Trump could not exercise the same powers of the presidency as Barack Obama because of Trump’s rhetoric, to the Court ducking the religious speech questions in Masterpiece Cakeshop by focusing on the open anti-religious animus of the Colorado authorities, to Chief Justice Roberts repeatedly ruling that Trump’s powers hinged on whether he had done his homework properly. That said, the mootness inquiry is often not a pure exercise of applying neutral principles — the Court has to judge whether particular litigants are just retreating temporarily to game the system, and that can never be entirely separated from a judgment of the litigants’ track record. It seems newsworthy that the Court’s majority now says openly that it mistrusts the largest state’s lockdown authorities on matters of a core constitutional liberty.
The other interesting note: While the five conservatives joined this opinion and the three liberals dissented, the opinion merely records: “The Chief Justice would deny the application.” He joined neither the opinion nor the dissent, and he did not explain why. This was an emergency application for relief rather than a case fully briefed on the Court’s docket, so one does not always expect every justice to write or join an opinion, but it is unusual on the modern Court for eight Justices to make their views known and just one to stand mute. One suspects that Roberts may have felt the case was moot, but even if not inclined to write a full opinion, he could have said so in one sentence. I noted back in January that Roberts owed us his view of whether he was constitutionally required to preside over Trump’s impeachment trial after Trump left office, and Roberts ended up doing nothing, letting the media speculate through leaks about whether he had refused to preside or whether he had not been asked. The ambiguity of his abstention ended up helping give constitutional cover to Republican senators who voted to acquit on the grounds of the legal impropriety of the proceeding.
Supreme Court justices have one job: say what the law is. Sometimes, that is limited to saying why some point of law excuses them from deciding a larger one. But when the whole rest of the Court went on record, the chief justice preferred not to. A lack of courage continues to be the central flaw in Roberts’s judicial character.