The Chief Justice’s Unexpected Super Precedent from the Shadow Docket
On May 29, 2020, the Supreme Court denied an injunction in South Bay United Pentecostal Church v. Newsom. The Court’s order was a single sentence. Chief Justice Roberts wrote a solo concurrence that stretched about two pages. According to Westlaw, 114 cases have cited the Chief’s concurrence. (I cited many of these cases in my Harvard JLPPP article). And only one of those case has negatively referenced the opinion. In six months, South Bay may have become Chief Justice Roberts’s most influential precedent during his entire tenure on the Court.
To be sure, Roberts has written many important decisions. But those cases affected discrete controversies. NFIB v. Sebelius resolved the constitutionality of the ACA. Shelby County v. Holder resolved the status of the Voting Rights Act. The Census and DACA cases resolved controversies specific to the Trump era. And so on.
But his South Bay concurrence settled cases of first impressions that have spanned across the entire spectrum of constitutional adjudication. Courts have cited South Bay in cases involving every facet of the Bill of Rights: the Freedom of Speech, the Free Exercise of Religion, Freedom of Association, the Second Amendment, various criminal procedure rights (such as the right to a speedy trial), and the Eighth Amendment (conditions for prisoners). South Bay has been cited in substantive due process cases, involving rights to contract and rights to abortion. South Bay has been decisive in cases involving voting rights during the pandemic. Courts have relied on South Bay to determine the police powers of governors to impose mask mandates and other quarantine measures. In disputes between state and localities, South Bay has served as a tiebreaker.
It is difficult to account for how broadly governments at all levels have relied on the Chief’s opinion. Conservatives and liberals have latched onto the Chief’s cursory analysis as the end-all be-all of COVID-deference. Before South Bay, several courts actually ruled for the religious claimants. But since South Bay, houses of worship have consistently lost. Truly, the impact of the South Bay concurrence has been staggering.
Regrettably, courts have failed to account for the narrow context in which South Bay arose. The Plaintiffs sought an injunction pending appeal. The crux of Roberts’s concurrence is that the Supreme Court should not grant an injunction pending appeal unless the “‘the legal rights at issue are indisputably clear’ and, even then, ‘sparingly and only in the most critical and
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