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Law360 (April 12, 2021, 7:04 PM EDT) -- Bringing transparency to the U.S. Supreme Court's "shadow docket" is going to take more than finger-wagging by congressional lawmakers, the justices showed on Friday, when they handed down an unsigned 5-4 decision on California COVID-19 restrictions at midnight.
The court issued an unsigned opinion striking down California's restrictions on in-home religious gatherings over the dissents of the three liberal justices and Chief Justice John Roberts, the fifth time the high court has weighed in on the state's COVID-19 rules since the start of the pandemic.
"Applicants are likely to succeed on the merits of their free exercise claim," the court wrote in its per curiam opinion. "[T]hey are irreparably harmed by the loss of free exercise rights 'for even minimal periods of time'; and the State has not shown that 'public health would be imperiled' by employing less restrictive measures."
Friday's ruling is the latest from the Supreme Court's "shadow docket," which refers to the unsigned, dead-of-night decisions that don't go through the normal process of full briefing and oral argument. In the past year, the Supreme Court has used its shadow docket to decide disputes over high-profile public policy issues, including COVID-19 restrictions, election rules and the death penalty.
The lack of transparency in these orders and opinions has drawn criticism from a number of journalists, watchdog groups and even congressional lawmakers, who convened the first-ever House subcommittee hearing on the shadow docket in February.
"Here, the justices make their decisions based on shorter than usual briefs, without oral argument and under a shorter timeline," Rep. Hank Johnson, D-Ga., chairman of the House Judiciary subcommittee on courts, intellectual property and the internet, said at the February hearing. "As a result, the public has little or no insight into the court's decision-making."
But if February's hearing on the subject was a warning that the Supreme Court should reduce its use of its shadow docket lest it face legislative action, Friday night's ruling was a rude awakening.
On Twitter, University of Texas School of Law professor Stephen Vladeck pointed out that the ruling is the latest example of the Supreme Court's changing approach to emergency requests for injunctions. Unlike a stay application, a party may ask the court for an injunction pending appeal when both the circuit court and district court refused to grant a preliminary injunction.
Such requests are supposed to be "exceedingly rare," Vladeck tweeted, but the court has ordered such relief at least seven times this term in religious challenges to COVID-19 regulations.
"This is why the 'shadow docket' is a problem," Vladeck tweeted. "It's not just that it's busier than ever before; it's not just that more of these rulings are changing the status quo *during* litigation; it's that the Justices are using these emergency orders to change doctrine across *all* cases."
Vladeck was one of the witnesses at February's congressional hearing on the shadow docket, alongside D.C. Solicitor General Loren AliKhan. For her part, AliKhan testified that the court's use of the shadow docket to resolve cases involving local responses to COVID-19 have made it difficult for public health officials battling the pandemic with little legal guidance.
In its earlier ruling lifting California's prohibition on indoor church gatherings, the court said that the state did not impose such restrictions on secular businesses. But in a dissent on Friday night, Justice Elena Kagan, joined by Justice Sonia Sotomayor and Justice Stephen Breyer, said the court was now going a step further and comparing apples to watermelons.
"California limits religious gatherings in homes to three households," she said. "If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment."
And in perhaps an allusion to criticism of the court's shadow orders, Justice Kagan faulted the majority for its "reliance on separate opinions and unreasoned orders."
"Because the majority continues to disregard law and facts alike, I respectfully dissent from this latest per curiam decision," she wrote.
--Editing by Nicole Bleier and Jill Coffey.
For a reprint of this article, please contact reprints@law360.com.
