Earlier this week, I wrote to reassure those involved in the fight for religious freedom about Justice Amy Coney Barrett’s denial of Indiana University students’ application for a preliminary injunction against the university’s vaccination mandates. It turns out that the U.S. Supreme Court itself has offered a reassuring decision to those folks as well by granting an application for a preliminary injunction against New York’s moratorium on evictions on August 12, 2021.
In an unsigned 6-3 decision, the Supreme Court held that New York’s emergency statutory provision that allowed tenants to self-certify hardship and barred landlords from contesting the certification in a court proceeding violated its longstanding precedents that no one can be a judge in their own case and that the provisions violated the landlords’ due process rights. Justices Breyer, joined by Justices Sotomayor and Kagan, dissented in a brief opinion arguing that the expiration of the provision in three weeks obviates the need for an injunction.
For those despairing in the aftermath of the Indiana University decision, this decision should be a welcome piece of news for two reasons. First, the attorneys for the landlords did an excellent job tailoring their application for an injunction to take advantage of clearly established law that was on their side. Six justices, including Justice Barrett, proved receptive to their arguments. Second, as we saw with prior Supreme Court pandemic decisions last summer, at least five conservative justices are willing to enjoin unconstitutional COVID-19 laws. Where Chief Justice John Roberts falls on that spectrum is unclear although he did join the majority in this decision.
Those who are eagerly waiting for a sign of hope from the Supreme Court and were disappointed by Justice Barrett’s denial of the Indiana University case should take heart in this decision and also consider a lesson from it. Both cases are referred to by Supreme Court insiders as “shadow docket” cases – applications that do not appear on the Supreme Court’s docket for full merits consideration but rather to enjoin a state action. The success or failure of a shadow docket application rests heavily on (1) the procedural posture, (2) the Supreme Court’s prior precedents, and (3) the Justices’ views of the issue.
Of these three factors, the first two dominate the consideration of a shadow docket application. Justices rarely act on their true and full merits inclinations when it comes to shadow docket cases. In fact, the entire shadow docket process is designed to remove full merits considerations from the equation. What matters is what the current state of the law is, and the applicants bear a heavy burden to show that it strongly favors them. In other words, the shadow docket is not the place where the Supreme Court overrules prior decisions that are bad.
The tale of the two cases speaks volumes. The Indiana University case was presented as well as it could have been. The law and the procedural posture did not favor its success. To the contrary, there was little question that the law and the procedural posture in the New York evictions case clearly favored the applicants. Thus, the Court gave them the relief that they sought.
The Indiana case does not spell the end of challenges to COVID-19 vaccine mandates. Instead, it reminds shadow docket litigants that the legal rules that lawyers wrestle with every day still carry much weight at the Supreme Court even if they do not make sense elsewhere. I am fully confident that a well-presented challenge to a COVID-19 vaccine mandate – predicated on the right facts and procedural posture – would get an injunction at the Supreme Court’s shadow docket. I hope to present one with my colleagues soon.
Thus, take heart. There is hope for us yet in the courts.