The Appellate Shadow Docket
Since the onset of the COVID-19 pandemic, the Supreme Court has made major jurisprudential shifts on the shadow docket. Initially, South Bay became a super precedent. And more recently, Diocese established the new Free Exercise framework for lockdown cases. All of these moves were made in unargued, unsigned per curiam opinions. Indeed, it was never clear if these sorts of emergency orders should even be precedential.
During this period, the lower courts have also made major jurisprudential shifts through unargued, unsigned per curiam opinions. Each court of appeals has its own shadow docket. And this shadow docket operates in a similar fashion to the Supreme Court’s shadow docket. The circuit courts can grant stays or grant injunctions on an expedited basis. In the process, these shadow docket decisions can set new circuit precedents.
A recent decision from the Sixth Circuit shines a light on this facet of the appellate shadow docket. On December 17, the Supreme Court ruled against the Danville Christian Academy in Kentucky. The Court punted, finding that the order would soon expire. Though, that shadow docket order went out of its way to state that the Danville Christian Academy did not raise a hybrid rights claim under Smith.
Another Kentucky case, however, squarely raised the hybrid claim. The Pleasant View Baptist Church argued:
The Governor conflates the nature of a hybrid claim at page 11 of his response, claiming that the right to private education merely collapses into a Free Exercise claim. Again, the Supreme Court did not see it that way yesterday in Danville, 20A96, and the observations of the Court suggest that the outcome would have been different, had the hybrid claims been raised as they have been here.
Thus, where the Free Exercise Claim involves religious education and the right of parents to direct that in person education, strict scrutiny is triggered. Smith, 494 U.S. 872 at 881, citing Pierce v. Society of Sisters, 268 U. S. 510 (1925); Wisconsin v. Yoder, 406 U. S. 205 (1972). See, also, Ohio Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 423 (6th Cir. 1996); Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927, 931 (6th Cir. 1991).
On December 21, a three judge panel (McKeague, Donald, and Readler) rejected the Church’s position. An unsigned order denied a stay on equitable grounds, citing the Supreme Court’s Danville decision:
With respect to the challenges to the first prohibition, the Supreme Court’s recent order in Danville Christian Academy v. Beshear, concerning a free-exercise challenge to the same executive order, likewise resolves the emergency request in this case. See No. 20A96, slip op. (Dec. 17, 2020). The Supreme Court in Danville declined to address the likelihood that the petitioners would prevail on the merits of their free exercise claims. Observing that the execu
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