South Bay United Pentecostal Church v. Newsom ( 2021 )

Cite as: 592 U. S. ____ (2021) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A136 (20–746)
_________________
SOUTH BAY UNITED PENTECOSTAL CHURCH,
ET AL., v. GAVIN NEWSOM, GOVERNOR OF
CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[February 5, 2021]
The application for injunctive relief presented to JUSTICE
KAGAN and by her referred to the Court is granted in part.
Respondents are enjoined from enforcing the Blueprint’s
Tier 1 prohibition on indoor worship services against the
applicants pending disposition of the petition for a writ of
certiorari. The application is denied with respect to the per-
centage capacity limitations, and respondents are not en-
joined from imposing a 25% capacity limitation on indoor
worship services in Tier 1. The application is denied with
respect to the prohibition on singing and chanting during
indoor services. This order is without prejudice to the ap-
plicants presenting new evidence to the District Court that
the State is not applying the percentage capacity limita-
tions or the prohibition on singing and chanting in a gener-
ally applicable manner. Should the petition for a writ of
certiorari be denied, this order shall terminate automati-
cally. In the event the petition for a writ of certiorari is
granted, the order shall terminate upon the sending down
of the judgment of this Court.
JUSTICE THOMAS and JUSTICE GORSUCH would grant the
application in full.
JUSTICE ALITO would grant the application with respect
to all of the capacity restrictions on indoor worship services
and the prohibition against indoor singing and chanting,
2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
ROBERTS, C. J., concurring
and would stay for 30 days an injunction against the per-
centage attendance caps and the prohibition against indoor
singing and chanting. JUSTICE ALITO would have the stay
lift in 30 days unless the State demonstrates clearly that
nothing short of those measures will reduce the community
spread of COVID–19 at indoor religious gatherings to the
same extent as do the restrictions the State enforces with
respect to other activities it classifies as essential.
CHIEF JUSTICE ROBERTS, concurring in the partial grant
of application for injunctive relief.
As I explained the last time the Court considered this
evolving case, federal courts owe significant deference to po-
litically accountable officials with the “background, compe-
tence, and expertise to assess public health.” South Bay
United Pentecostal Church v. Newsom, 590 U. S. ___, ___
(2020) (opinion concurring in denial of application for in-
junctive relief ) (slip op., at 2). The State has concluded, for
example, that singing indoors poses a heightened risk of
transmitting COVID–19. I see no basis in this record for
overriding that aspect of the state public health framework.
At the same time, the State’s present determination—that
the maximum number of adherents who can safely worship
in the most cavernous cathedral is zero—appears to reflect
not expertise or discretion, but instead insufficient appreci-
ation or consideration of the interests at stake.
I adhere to the view that the “Constitution principally en-
trusts the safety and the health of the people to the politi-
cally accountable officials of the States.” Ibid. (internal
quotation marks and alteration omitted). But the Consti-
tution also entrusts the protection of the people’s rights to
the Judiciary—not despite judges being shielded by life ten-
ure, see post, at 6 (KAGAN, J., dissenting), but because they
are. Deference, though broad, has its limits.
Cite as: 592 U. S. ____ (2021) 1
BARRETT, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A136 (20–746)
_________________
SOUTH BAY UNITED PENTECOSTAL CHURCH,
ET AL., v. GAVIN NEWSOM, GOVERNOR OF
CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[February 5, 2021]
JUSTICE BARRETT, with whom JUSTICE KAVANAUGH
joins, concurring in the partial grant of application for in-
junctive relief.
I agree with JUSTICE GORSUCH’s statement, save its con-
tention that the Court should enjoin California’s prohibi-
tion on singing and chanting during indoor services. The
applicants bore the burden of establishing their entitlement
to relief from the singing ban. In my view, they did not
carry that burden—at least not on this record. As the case
comes to us, it remains unclear whether the singing ban ap-
plies across the board (and thus constitutes a neutral and
generally applicable law) or else favors certain sectors (and
thus triggers more searching review). Of course, if a chor-
ister can sing in a Hollywood studio but not in her church,
California’s regulations cannot be viewed as neutral. But
the record is uncertain, and the decisions below unfortu-
nately shed little light on the issue. As the order notes,
however, the applicants remain free to show that the sing-
ing ban is not generally applicable and to advance their
claim accordingly.
Cite as: 592 U. S. ____ (2021) 1
Statement of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A136 (20–746)
_________________
SOUTH BAY UNITED PENTECOSTAL CHURCH,
ET AL., v. GAVIN NEWSOM, GOVERNOR OF
CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[February 5, 2021]
Statement of JUSTICE GORSUCH, with whom JUSTICE
THOMAS and JUSTICE ALITO join.
Often, courts addressing First Amendment free exercise
challenges face difficult questions about whether a law re-
flects “ ‘subtle departures from neutrality,’ ” “ ‘religious ger-
rymander[ing],’ ” or “impermissible targeting” of religion.
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.
520, 534–535 (1993). But not here. Since the arrival of
COVID–19, California has openly imposed more stringent
regulations on religious institutions than on many busi-
nesses. The State’s spreadsheet summarizing its pandemic
rules even assigns places of worship their own row. See
App. to Emergency Application for Writ of Injunction, App.
G–3. At “Tier 1,” applicable today in most of the State, Cal-
ifornia forbids any kind of indoor worship. Meanwhile, the
State allows most retail operations to proceed indoors with
25% occupancy, and other businesses to operate at 50% oc-
cupancy or more. See ibid; see also ___ F. 3d ___, 2021 WL
222814, App. A (CA9, Jan. 22, 2021). Apparently, Califor-
nia is the only State in the country that has gone so far as
to ban all indoor religious services. See Brief for Becket
Fund for Religious Liberty as Amicus Curiae, 5–6.
When a State so obviously targets religion for differential
treatment, our job becomes that much clearer. As the Ninth
Circuit recognized, regulations like these violate the First
2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
Statement of GORSUCH, J.
Amendment unless the State can show they are the least
restrictive means of achieving a compelling government in-
terest. ___ F. 3d, at ___, 2021 WL 222814, *9.
In cases implicating this form of “strict scrutiny,” courts
nearly always face an individual’s claim of constitutional
right pitted against the government’s claim of special ex-
pertise in a matter of high importance involving public
health or safety. It has never been enough for the State to
insist on deference or demand that individual rights give
way to collective interests. Of course we are not scientists,
but neither may we abandon the field when government of-
ficials with experts in tow seek to infringe a constitutionally
protected liberty. The whole point of strict scrutiny is to
test the government’s assertions, and our precedents make
plain that it has always been a demanding and rarely sat-
isfied standard. See Lukumi, 508 U. S., at 546. Even in
times of crisis—perhaps especially in times of crisis—we
have a duty to hold governments to the Constitution.
Still, California says it can thread the needle. It insists
that religious worship is so different that it demands espe-
cially onerous regulation. The State offers essentially four
reasons why: It says that religious exercises involve (1)
large numbers of people mixing from different households;
(2) in close physical proximity; (3) for extended periods; (4)
with singing.
No one before us disputes that factors like these may in-
crease the risk of transmitting COVID–19. And no one need
doubt that the State has a compelling interest in reducing
that risk. This Court certainly is not downplaying the suf-
fering many have experienced in this pandemic. But Cali-
fornia errs to the extent it suggests its four factors are al-
ways present in worship, or always absent from the other
secular activities its regulations allow. Nor has California
sought to explain why it cannot address its legitimate con-
cerns with rules short of a total ban. Each of the State’s
shortcomings are telltale signs this Court has long used to
Cite as: 592 U. S. ____ (2021) 3
Statement of GORSUCH, J.
identify laws that fail strict scrutiny. See, e.g., First Nat.
Bank of Boston v. Bellotti, 435 U. S. 765, 793 (1978) (The
State’s proffered “purpose is belied, however, by the provi-
sions of the statute, which are both underinclusive and
overinclusive.”).
Consider California’s arguments in turn. The State pre-
sumes that worship inherently involves a large number of
people. Never mind that scores might pack into train sta-
tions or wait in long checkout lines in the businesses the
State allows to remain open. Never mind, too, that some
worshippers may seek only to pray in solitude, go to confes-
sion, or study in small groups. See Harvest Rock Church,
Inc. v. Newsom, App. to Emergency Application for Writ of
Injunction, No. 20A137, Exh. A, No. 20–56357, p. 4, n. 1
(CA9, Jan. 25, 2021) (O’Scannlain, J., specially concurring).
Nor does California explain why the less restrictive option
of limiting the number of people who may gather at one
time is insufficient for houses of worship, even though it has
found that answer adequate for so many stores and busi-
nesses.
Next, the State tells us that worshippers are sure to seek
close physical interactions. It touts its mild climate, too,
suggesting that worshippers might enjoy more space out-
doors. Yet, California is not as concerned with the close
physical proximity of hairstylists or manicurists to their
customers, whom they touch and remain near for extended
periods. The State does not force them or retailers to do all
their business in parking lots and parks. And California
allows people to sit in relatively close proximity inside
buses too. Nor, again, does California explain why the nar-
rower options it thinks adequate in many secular settings—
such as social distancing requirements, masks, cleaning,
plexiglass barriers, and the like—cannot suffice here. Es-
pecially when those measures are in routine use in religious
services across the country today.
California worries that worship brings people together
4 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
Statement of GORSUCH, J.
for too much time. Yet, California does not limit its citizens
to running in and out of other establishments; no one is
barred from lingering in shopping malls, salons, or bus ter-
minals. Nor, yet again, has California explained why more
narrowly tailored options, like a reasonable limit on the
length of indoor religious gatherings, would fail to meet its
concerns.
When it comes to each of the first three factors, California
singles out religion for worse treatment than many secular
activities. At the same time, the State fails to explain why
narrower options it finds sufficient in secular contexts do
not satisfy its legitimate interests. Recently, this Court
made it abundantly clear that edicts like California’s fail
strict scrutiny and violate the Constitution. See Roman
Catholic Diocese of Brooklyn v. Cuomo, ante, at ___ (per cu-
riam). Today’s order should have been needless; the lower
courts in these cases should have followed the extensive
guidance this Court already gave. 1
If I have a quibble with the Court’s order, it is with how
it addresses California’s final factor, singing. While the
Court’s order requires California to allow churches to open,
it also permits California to enforce, for now, a categorical
ban on singing during services. This much might seem un-
derstandable. California has sensibly expressed concern
that singing may be a particularly potent way to transmit
the disease, and it has banned singing not just at indoor
worship services, but at indoor private gatherings, schools,
and restaurants too.
But, on further inspection, the singing ban may not be
——————
1 While today’s case concerns the total ban on indoor worship found in
“Tier 1,” nothing in our order precludes future challenges to the other
disparate occupancy caps applicable to places of worship, particularly in
“Tiers” 2 through 4. See App. to Emergency Application for Writ of In-
junction, App. G–3.
Cite as: 592 U. S. ____ (2021) 5
Statement of GORSUCH, J.
what it first appears. It seems California’s powerful enter-
tainment industry has won an exemption. 2 So, once more,
we appear to have a State playing favorites during a pan-
demic, expending considerable effort to protect lucrative in-
dustries (casinos in Nevada; movie studios in California)
while denying similar largesse to its faithful. See, e.g., Cal-
vary Chapel Dayton Valley v. Sisolak, 591 U. S. ___, ___
2020) (GORSUCH, J., dissenting from denial of application
for injunction relief ).
Once more, too, the State has not explained how a total
ban on religious singing is narrowly tailored to its legiti-
mate public health concerns. Even if a full congregation
singing hymns is too risky, California does not explain why
even a single masked cantor cannot lead worship behind a
mask and a plexiglass shield. Or why even a lone muezzin
may not sing the call to prayer from a remote location inside
a mosque as worshippers file in. The Ninth Circuit sought
to defend California’s uneven regime by observing that the
——————
2 There is some confusion over what rules actually apply to Hollywood
but I would not allow the government officials who created California’s
complex regime to benefit from its confusing nature. The district court
did not address the singing ban, and the Ninth Circuit applied rational-
basis review because it was not convinced that anyone is permitted to
sing indoors in California. ___ F. 3d., ___, 2021 WL 222814, *18 (CA9,
Jan. 22, 2021). But the record suggests that music, film, and television
studios are permitted to sing indoors. See Record in No. 20–56358, Doc.
18–4, p. 124 (CA9) (decl. of Screen Actors Guild General Counsel) (“Sing-
ing in larger groups [inside the studio] is permitted but only . . . with
additional protections.”). California’s most recent edict prohibits singing
at “private” “social situations” as well as “activities protected by the First
Amendment to the extent they are not already permitted by other guid-
ance.” California Dept. of Public Health, Guidance for the Prevention of
COVID–19 Transmission for Gatherings (updated Nov. 13, 2020). No
one seems to know exactly how far this language stretches, but it seems
unlikely to apply to the entertainment industry, which has its own gov-
erning guidance. And California does not squarely deny as much here.
See Brief in Opposition 51–52, and n. 52. As the Court recognizes,
though, nothing in today’s order precludes future relief on this claim ei-
ther.
6 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
Statement of GORSUCH, J.
entertainment industry has adopted COVID–19 testing
protocols. See ___ F. 3d., at ___, 2021 WL 222814, *13. But,
if that’s true, it is unclear why California’s religious insti-
tutions might be denied a similar opportunity. Rather than
assume such testing is infeasible, California might have at
least offered the option, or sought to adapt it to churches.
In my view, the State must do more to tailor the require-
ments of public health to the rights of its people. The
Court’s order today at least allows the applicants to press
these points on remand.
No doubt, California will argue on remand, as it has be-
fore, that its prohibitions are merely temporary because
vaccinations are underway. But the State’s “temporary”
ban on indoor worship has been in place since August 2020,
and applied routinely since March. California no longer
asks its movie studios, malls, and manicurists to wait. And
one could be forgiven for doubting its asserted timeline.
Government actors have been moving the goalposts on pan-
demic-related sacrifices for months, adopting new bench-
marks that always seem to put restoration of liberty just
around the corner. As this crisis enters its second year—
and hovers over a second Lent, a second Passover, and a
second Ramadan—it is too late for the State to defend ex-
treme measures with claims of temporary exigency, if it
ever could. Drafting narrowly tailored regulations can be
difficult. But if Hollywood may host a studio audience or
film a singing competition while not a single soul may enter
California’s churches, synagogues, and mosques, something
has gone seriously awry.
Cite as: 592 U. S. ____ (2021) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A136 (20–746)
_________________
SOUTH BAY UNITED PENTECOSTAL CHURCH,
ET AL., v. GAVIN NEWSOM, GOVERNOR OF
CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[February 5, 2021]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
Justices of this Court are not scientists. Nor do we know
much about public health policy. Yet today the Court dis-
places the judgments of experts about how to respond to a
raging pandemic. The Court orders California to weaken
its restrictions on public gatherings by making a special ex-
ception for worship services. The majority does so even
though the State’s policies treat worship just as favorably
as secular activities (including political assemblies) that,
according to medical evidence, pose the same risk of COVID
transmission. Under the Court’s injunction, the State must
instead treat worship services like secular activities that
pose a much lesser danger. That mandate defies our
caselaw, exceeds our judicial role, and risks worsening the
pandemic.
Start with the governing law. We have held time and
again that the First Amendment demands “neutrality” in
actions affecting religion. Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U. S. 520, 532 (1993). A government
cannot put limits on religious conduct if it “fail[s] to prohibit
nonreligious conduct that endangers” the government’s in-
terests “in a similar or greater degree.” Id., at 543. That
principle, though, has a corollary: The “Constitution does
not require things which are different in fact . . . to be
2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
KAGAN, J., dissenting
treated in law as though they were the same.” Plyler v. Doe,
457 U. S. 202, 216 (1982). So “States must treat like cases
alike but may treat unlike cases accordingly.” Vacco v.
Quill, 521 U. S. 793, 799 (1997); see Lukumi, 508 U. S.,
at 542. 1
California’s response to the COVID pandemic satisfies
that neutrality rule by regulating worship services the
same as other activities “where large groups of people [come
together] in close proximity for extended periods of time.”
South Bay United Pentecostal Church v. Newsom, 590 U. S.
___, ___ (2020) (ROBERTS, C. J., concurring in denial of ap-
plication for injunctive relief ) (slip op., at 2). The restricted
activities include attending a worship service or political
meeting; going to a lecture, movie, play, or concert; and fre-
quenting a restaurant, winery, or bar. So the activities are
both religious and secular—and many of the secular gath-
erings, too, are constitutionally protected. In all those com-
munal activities, California requires mask wearing and so-
cial distancing, and bars indoor singing and chanting, to
reduce the risk of COVID transmission. In addition, the
State has put limits on how many people can assemble in
one indoor space—whether a church, theater, or lecture
hall. Depending on COVID case and test-positivity rates,
public gatherings may occur only at specified occupancy lev-
els—for example, at 50% or 25% of a facility’s capacity. And
when COVID rates are highest, all those capacity limits
give way to a rule that the gathering—again, whether reli-
gious or secular—take place outdoors (with no limits on at-
tendance). Given California’s mild climate, that re-
striction—the one the Court today lifts for houses of
worship alone—does not amount to a ban on the activity.
Worship services, along with other gatherings, have taken
——————
1 Only if a government fails this neutrality test must its policy “be jus-
tified by a compelling government interest and . . . be narrowly tailored
to advance that interest.” Lukumi, 508 U. S., at 531–532.
Cite as: 592 U. S. ____ (2021) 3
KAGAN, J., dissenting
place outdoors throughout this winter.
California’s scheme homes in on these indoor gatherings
because they pose a heightened danger of COVID transmis-
sion. In written testimony in this case, Dr. James Watt, the
Chief of Communicable Diseases at the California Depart-
ment of Public Health, explained: “There is broad consen-
sus among epidemiologists that transmission (and thus
spread) of the novel coronavirus is more likely” at “[i]ndoor
public gatherings,” which “bring together [many] people
from different households.” Decl. of Dr. James Watt in No.
3:20–cv–865 (SD Cal.), Doc. 81–3, ¶¶37, 44 (Watt Decl.).
Dr. George Rutherford, a professor of epidemiology at the
University of California, San Francisco School of Medicine,
further elaborated on the point. He described the “in-
crease[ ]” in risk when gatherings “are of an extended dura-
tion, and when there is a lot of verbal interaction, especially
when there is group singing, chanting, or other loud vocali-
zation” like speeches or sermons. Decl. of Dr. George Ruth-
erford in No. 3:20–cv–865, Doc. 81–4, ¶91 (Rutherford
Decl.). That risk, of course, extends not only to the partici-
pants themselves, but to everyone they associate with in a
community. See Watt Decl., ¶42.
The medical experts also testified about why California
imposed more severe capacity limits on gathering places
like churches and theaters than on other indoor sites. The
State’s regulation of retail stores is less stringent, Dr. Ruth-
erford explained, because shopping “involves less close
proximity” with other people—and for less time—than does
an indoor worship service, lecture, or similar event. Ruth-
erford Decl., ¶113; see id., ¶117. For that reason, shoppers
are “less likely to receive a sufficient viral load of droplets”
to contract COVID. Id., ¶113. Similarly, Dr. Rutherford
observed, workplaces can have higher capacity limits be-
cause employers (and, by extension, their employees) must
comply with “detailed, workplace-specific COVID preven-
4 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
KAGAN, J., dissenting
tion plans subject to enforcement by State labor authori-
ties.” Id., ¶121. Film production studios in California, for
example, must test their employees as many as three times
a week—a requirement that “could not feasibly be applied
to the congregation of a house of worship.” Ibid., and n. 8.
Given all that evidence, California’s choices make good
sense. The State is desperately trying to slow the spread of
a deadly disease. It has concluded, based on essentially un-
disputed epidemiological findings, that congregating to-
gether indoors poses a special threat of contagion. So it has
devised regulations to curb attendance at those assemblies
and—in the worst times—to force them outdoors. Cru-
cially, California has applied each of those rules equiva-
lently to religious activities and to secular activities, includ-
ing some with First Amendment protection of their own.
Where the State has regulated religious conduct, it has as
well regulated “nonreligious conduct that endangers [its]
interests in a similar” way. Lukumi, 508 U. S., at 543. The
only secular conduct the State treats better is the kind that
its experts have found does not so imperil its interests—the
kind that poses less risk of COVID transmission. Nothing
in that policy violates the First Amendment.
Yet the Court will not let California fight COVID as it
thinks appropriate. The Court has decided that the State
must exempt worship services from the strictest aspect of
its regulation of public gatherings. No one can know, from
the Court’s 19-line order, exactly why: Is it that the Court
does not believe the science, or does it think even the best
science must give way? In any event, the result is clear:
The State may not treat worship services like activities
found to pose a comparable COVID risk, such as political
meetings or lectures. Instead, the State must treat this one
communal gathering like activities thought to pose a much
lesser COVID risk, such as running in and out of a hard-
ware store. In thus ordering the State to change its public
Cite as: 592 U. S. ____ (2021) 5
KAGAN, J., dissenting
health policy, the Court forgets what a neutrality rule de-
mands. The Court insists on treating unlike cases, not like
ones, equivalently. 2
This is no garden-variety legal error: In forcing California
to ignore its experts’ scientific findings, the Court impairs
the State’s effort to address a public health emergency.
There are good reasons why the Constitution “principally
entrusts the safety and the health of the people” to state
officials, not federal courts. South Bay, 590 U. S., at ___
(ROBERTS, C. J., concurring) (slip op., at 2) (internal quota-
tion marks and alteration omitted). First among them is
that judges “lack[ ] the background, competence, and exper-
tise to assess public health.” Ibid. To state the obvious,
judges do not know what scientists and public health ex-
perts do. I am sure that, in deciding this case, every Justice
carefully examined the briefs and read the decisions below.
But I cannot imagine that any of us delved into the scien-
tific research on how COVID spreads, or studied the strat-
egies for containing it. So it is alarming that the Court sec-
ond-guesses the judgments of expert officials, and displaces
their conclusions with its own. See Roman Catholic Diocese
of Brooklyn v. Cuomo, ante, at 3 (SOTOMAYOR, J., dissent-
ing). In the worst public health crisis in a century, this
——————
2 For much this reason, the Court’s decision in Roman Catholic Diocese
of Brooklyn v. Cuomo, ante, p. ___ (per curiam), does not require today’s
injunction. There, the Court found that New York had “single[d] out
houses of worship for especially harsh treatment.” Ante, at 3. But here,
according to the epidemiological evidence in the record, California has
treated houses of worship identically to other facilities with the same
risk. It is the Court, not the State, that “single[s] out” religious activity—
separating it from other equally risky public gatherings. What is more,
Roman Catholic Diocese held, at a time when New York was lifting re-
strictions to reflect declining case rates, that the policy at issue was “far
more severe than has been shown to be required to prevent the spread of
the virus.” Ante, at 4. No court—or, at any rate, no court with any sense
of modesty—can make that claim here. California’s hospitals are near
maximum capacity, and over 3,500 state residents perished from the vi-
rus just last week.
6 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
KAGAN, J., dissenting
foray into armchair epidemiology cannot end well.
And who knows what today’s decision will mean for other
restrictions challenged in other cases? The Court’s order
exempts churches only from California’s indoor ban, leaving
its capacity restrictions in place (at least for now). That is
all to the good: The injunction stops short of giving the
churches all their requested relief. But the scope of the or-
der raises questions. When are such capacity limits per-
missible, and when are they not? And is an indoor ban
never allowed, or just not in this case? Most important—do
the answers to those questions or similar ones turn on rec-
ord evidence about epidemiology, or on naked judicial in-
stinct? The Court’s decision leaves state policymakers
adrift, in California and elsewhere. It is difficult enough in
a predictable legal environment to craft COVID policies
that keep communities safe. That task becomes harder still
when officials must guess which restrictions this Court will
choose to strike down. The Court injects uncertainty into
an area where uncertainty has human costs.
All this from unelected actors, “not accountable to the
people.” South Bay, 590 U. S., at ___ (ROBERTS, C. J., con-
curring) (slip op., at 2). I fervently hope that the Court’s
intervention will not worsen the Nation’s COVID crisis.
But if this decision causes suffering, we will not pay. Our
marble halls are now closed to the public, and our life ten-
ure forever insulates us from responsibility for our errors.
That would seem good reason to avoid disrupting a State’s
pandemic response. But the Court forges ahead regardless,
insisting that science-based policy yield to judicial edict. I
respectfully dissent.