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Barrett and Kavanaugh Join Supreme Court Liberals To Reject Stay Of Maine Vax Mandate Lacking Religious Exemption

Barrett and Kavanaugh Join Supreme Court Liberals To Reject Stay Of Maine Vax Mandate Lacking Religious Exemption

Worried about the shadow docket: “Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to doso on a short fuse without benefit of full briefing and oral argument.”

On substance, the request for the Supreme Court to stay a Maine regulation mandating coronavirus vaccination for healthcare workers should have been an easy one. The law contains no religious exemption, but does contain a medical exemption which requires virtually no proof of medical condition. Consistent with other Supreme Court decisions which didn’t question government power during a pandemic, but insisted that religion not be disfavored,  stay should have issued.

But no. In an Order accompanied by a concurring opinion by Amy Coney Barrett joined by Brett Kavanaugh, the Court 6-3 denied the stay (emphasis added):

The application for injunctive relief presented to JUSTICE BREYER and by him referred to the Court is denied.

JUSTICE BARRETT, with whom JUSTICE KAVANAUGH joins, concurring in the denial of application for injunctive relief.

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant “‘is likely to succeed on the merits.’” Nken v. Holder, 556 U. S. 418, 434 (2009). I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case. See, e.g., Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam); cf. Supreme Court Rule 10. Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument. In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.

What this means in plain english is that procedurally Barrett and Kavaugh didn’t want emergency stays used as a substitute for full briefing and argument. This is the so-called “shadow docket” that has been harshly criticized mostly by leftist law professors who don’t like how that shadow docket has slowed down government overreach. They have been howling over this issue for months, obviously trying to influence SCOTUS.

The three conservatives on the court laid waste to the majority and Barrett-Kavanaugh arguments in a dissenting opinion authored by Gorsuch and joined by Thomas and Alito:

Maine has adopted a new regulation requiring certain healthcare workers to receive COVID–19 vaccines if they wish to keep their jobs. Unlike comparable rules in most other States, Maine’s rule contains no exemption for those whose sincerely held religious beliefs preclude them from accepting the vaccination. The applicants before us are a physician who operates a medical practice and eight other healthcare workers. No one questions that these individuals have served patients on the front line of the COVID–19 pandemic with bravery and grace for 18 months now. App. to Application for Injunctive Relief, Exh. 6, ¶8 (Complaint). Yet, with Maine’s new rule coming into effect, one of the applicants has already lost her job for refusing to betray her faith; another risks the imminent loss of his medical practice. The applicants ask us to enjoin further enforcement of Maine’s new rule as to them, at least until we can decide whether to accept their petition for certiorari. I would grant that relief….

Looking to the other traditional factors also suggests relief is warranted. Before granting a stay or injunctive relief, we ask not only whether a litigant is likely to prevail on the merits but also whether denying relief would lead to irreparable injury and whether granting relief would harm the public interest. Roman Catholic Diocese, 592 U. S., at ___– ___ (slip op., at 5–7); see also 28 U. S. C. §1651(a). The answer to both questions is clear. This Court has long held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion). And as we have seen, Maine has so far failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.

This case presents an important constitutional question, a serious error, and an irreparable injury. Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention. I would grant relief.

Read the whole thing. And watch the reactions.

The Shadow Docket noisemakers are gleeful.


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Some people are disappointed.

    4fun in reply to r2468. | October 31, 2021 at 10:18 pm

    No idea if this would really work. Pass it along to those facing the tyranny of the jab.

    Feel strongly about the OSHA vaccine mandate rule? Do something!

    If anyone wants to jam up the OSHA vaccine mandate rule, you can go to this page and request a meeting with OMB.

    They are required to meet with any interested parties to discuss questions or concerns.

    If a few hundred thousand people request meetings, this rule will be tied up in OMB for years. Spread the word.

Religious exemption has taken on the role of a safe space once freedom of association was overturned by civil rights laws.

Objecting but clothing it as religious is a level of dishonesty in public debate, and, perhaps the Supreme Court is anticipating, a too easy one to implement.

The law here has the legitimacy of externalities, and deferring to others on the facts, which it is not their place to judge.

    Doc-Wahala in reply to rhhardin. | October 30, 2021 at 9:09 pm

    So.. you think the religious exemption is false? Interesting.

    That means there has to be some form of validating a person’s religious commitment. Who gets to decide what that looks like? The government?

    I have a serious reservation about ANY argument that attempts to decide who is real and who is not when it
    Comes to Matters of faith. And even more so when it gets to someone from the government making that decision.

      AnAdultInDiapers in reply to Doc-Wahala. | October 31, 2021 at 10:43 am

      Ok, we validate someone’s religious commitment. So what?

      There are people so heavily committed to religion they’ll shoot medical professionals providing a legal service to others whose religion expressly permits them to accept it. There are people so religiously committed that they’ll stone a woman to death for being raped. There are people committed to religion so badly they’ll strap on a suicide vest and go hunting for unbelievers.

      You’ll forgive me if I really don’t care how committed someone is to their religion.

      The Maine law should have an exception for “I do not wish to” and that should suffice. Otherwise you’re just inviting people to make up new religions to get out of any law they don’t like.

    CommoChief in reply to rhhardin. | October 30, 2021 at 9:27 pm


    It isn’t really up to the person claiming the exemption to prove the claim. All they need to show is a reasonable basis for the claim and that they have some level of previous commitment to the grounds claimed. The claim is basically presumptive, the burden is on the entity opposing the claim to show that the claim will have a meaningful adverse impact that critically undermines the policy and that the claim is an insincere subterfuge. That’s a tall order.

    So yes, you are correct that a religious exemption is a problematic obstacle to the imposition of sweeping policies by the irreligious administrative state. As it should be. IMO the mere lack of any availability for an exemption based upon religion or conscious is enough to sustain an injunction.

    henrybowman in reply to rhhardin. | October 30, 2021 at 10:10 pm

    The “religious freedom” issue is not limited to what you can prove that an invisible granddaddy in the sky told a bunch of people with an organized corporate identity. You can claim it if you object to something by even a “sincerely held belief,” regardless of whether that belief is theological or secular, and regardless of how many people hold it.

    And the proper response here is to make such a claim, regardless of the fact that the Maine law says it will not honor it, then litigate the crap out of it.

    JHogan in reply to rhhardin. | October 31, 2021 at 11:19 am

    I can call myself reverend, open a strip mall store front ministry, start collecting ‘donations’, and reap all of the legal and tax benefits and exemptions allowed.

    But I ‘m required to prove to the government the sincerity of my religious beliefs, to their satisfaction, to avoid being forced to submit myself to an experimental medical procedure with unknown long term consequences.

    Except where the government and SCOTUS do not even allow that.

    For a virus with a fatality rate for those under 50 comparable to the seasonal flu.

    America is doomed. Let’s Go Brandon!

Big thanks to Mitch and The Federalist Society for the 6-3 “conservative” court.

    txvet2 in reply to Paddy M. | October 30, 2021 at 7:49 pm

    Mitch didn’t nominate either of them, and this board was massively in favor of both.

      Paddy M in reply to txvet2. | October 30, 2021 at 8:35 pm

      You’re right. Mitch and his band of RINO had no say in the nomination process. It’s not like he could tell Trump his nominee wouldn’t pass the advise and consent part.

      Barry in reply to txvet2. | October 30, 2021 at 10:15 pm

      Baloney. Trump made a mistake, but he did it because the only picks he could get through confirmation were those backed by the Federalist Society, which should now be understood to be a deep state society, nothing more.

      There were many that predicted both of them would end up being leftists, and they were right. I was on the fence about it, and I was wrong.

      They are both worthless, useless, in bed with the marxists.

Trump had awful picks inside the executive branch and couldn’t even get his other picks right. IMO his policies were head and shoulders above those of the current administration, but most everything else was second rate.

    Olinser in reply to jb4. | October 30, 2021 at 7:13 pm

    Gosh, it’s almost like Bitch McConnell kept the Senate ‘in session’ for four years specifically so Trump COULDN’T pick who he wanted and was forced to only put up nominees that the RINOs wanted.

      Paddy M in reply to Olinser. | October 30, 2021 at 7:24 pm


        txvet2 in reply to Paddy M. | October 30, 2021 at 7:54 pm

        Bullshit. That had nothing to do with any of his three SCOTUS picks, for whom a recess appointment is inapplicable.

          Olinser in reply to txvet2. | October 30, 2021 at 9:40 pm

          The fact that he had to get them past the RINOs is irrelevant?

          Were you asleep for four years? The RINO pieces of trash could BARELY bring themselves to push Kavanaugh through!!!

          Barry in reply to txvet2. | October 30, 2021 at 10:18 pm

          The only bovine feces being spread about is emanating from your keyboard.

          You have no idea what was being done to hamstring Trump. You are precisely why we are losing.

      TargaGTS in reply to Olinser. | October 31, 2021 at 10:16 am

      You’re absolutely correct. But, it’s important to keep in mind that recess appointments can only serve for a 12-month period. It’s a stop-gap. So yes, it definitely handicapped Trump a bit. But, the lager problems was the number of ‘Republican’ Senators who wouldn’t themselves vote to confirm these picks.

    henrybowman in reply to jb4. | October 30, 2021 at 10:13 pm

    Previous studies that go way back before JFK indicate that justices nominated by a Democratic president rule liberal nearly 100% of the time, while justices nominated by a Republican president rule conservatively at most 50% of the time. This syndrome was not particular to Trump.

Vaccine mandates should be overturned on sight — exemptions or no.

Their bullshit about a ‘shadow docket’ is FUCKING RIDICULOUS.

This isn’t a shocking sudden niche issue.

This is an issue that they SHOULD have taken a case and ruled on MONTHS AGO. Everybody with a functioning brain knew that they were going to HAVE to rule on this issue or Democrats were going to keep pushing.

They’re just cowardly RINOs who don’t even have the balls to admit that they’re going to cave to an utterly laughable overreach.

    amwick in reply to Olinser. | October 31, 2021 at 7:13 am

    When I heard the screaming about this decision I figured something was going on that I didn’t understand,,, and here we have the good Professor explaining about the shadow docket. Another ruling that is more procedural than substantive,, gotcha (maybe) This shadow docket has been slowing down government overreach, which seams like a good thing to me. When Scotus puts the brakes on that, what is left? Scotus is fiddling while Rome burns… Thanks for nothing guys…. SMH

      Olinser in reply to amwick. | October 31, 2021 at 1:33 pm

      So clearly you haven’t actually read the entire story then.

      Because as the ACTUAL conservatives pointed out in their absolutely withering dissent, by refusing to issue a stay, the Supreme court is going to allow people to be fired over this until they finally get around to ruling. Which is UNACCEPTABLE, and is a giant blazing signal in the side that Kavanaugh and Barrett don’t care because they’re planning to uphold this insane overreach.

      As they said, refusing to issue a stay means that the plaintiffs EVEN IF THEY WIN, will suffer potentially irreparable harm by being fired and going months without a job.

      This ‘shadow docket’ bullshit is just another example of RINOs using a pathetically transparent excuse as to why they’re caving to the left.

The essence of the matter is this: When liberals are nominated to the Supreme Court you can be sure they are what they seem and will remain so. When conservatives are nominated there is no way to be sure of anything, not even whether they were really conservative to begin with.

Now everyone can be compelled to accept the products of abortion, whether they believe it is murder or not. All shall bend the knee before today’s cult of Baal.

Don’t know if this is the end times, but it’s sure looking like it.

Don’t know if this is the end times either, but we’re a lot close to the end than we are the beginning.

The vaccine mandates are illegal. To be mandated, the vaccine has to be approved. The FDA approved Comirnaty, but it is not available. Only the experimental vaccine is available which is against the law in two ways or actually too many to mention.

1. It is illegal to mandate an experimental vaccine. The CDC says that the experimental vaccine is interchangeable but “legally distinct”.

2. It is illegal for the experimental vaccine to be available. The experimental vaccines must be pulled when the FDA approves the vaccine.

So the mandate is for an experimental and illegal vaccine.

Does anyone care about the law?

    amwick in reply to InEssence. | October 31, 2021 at 7:19 am

    Those are all great points, but , this is not a nation of laws anymore. Didn’t you get the memo? Seems to me that everything that had been spelled out in black and white,, all those volumes of case books, and the laws themselves, all the way up to the biggie, our Constitution, all that is just gathering dust in a basement somewhere.

    AnAdultInDiapers in reply to InEssence. | October 31, 2021 at 10:50 am

    “The FDA approved Comirnaty, but it is not available” is something I keep hearing but have seen no evidence towards. My understanding is that Comirnaty is a commercial name for the Pfizer-Biontech vaccine, and not a separate and distinct thing.

    Certainly the UK health authorities treat it that way – see the multiple references in

    Where did the CDC say that the two vaccines are distinct, and is that still the case now anyway?

      LibraryGryffon in reply to AnAdultInDiapers. | October 31, 2021 at 1:09 pm


      The confusion stems from this section of the FDA’s Comirnaty Vaccine Information for Recipients and Caregivers sheet:

      “[1] The licensed vaccine has the same formulation as the EUA-authorized vaccine and the products can be used interchangeably to provide the vaccination series without presenting any safety or effectiveness concerns. The products are legally distinct with certain differences that do not impact safety or effectiveness.”

      The FDA desires to have a single, combined Vaccine Information Sheet. A single sheet keeps things simple for the people administering and receiving the vaccines. Since the branded and unbranded vials of vaccines are chemically identical, despite being legally distinct, this information must be included. (

      I’ve seen this elsewhere too. Now, if someone could just explain why two identical chemical formulations are legally distinct, and why (at least per the DOD) a recipient’s medical records must specify exactly which of the two they received…

The stay was correctly denied because there is no compelling religious basis for refusing the vaccine. Requiring the vaccine for health care workers does not offend or violate any recognized religious teaching.

    Recognized by whom? Is there a Department of Official Religious Teachings lurking somewhere in the Federal bureaucracy?

    henrybowman in reply to Juris Doctor. | October 31, 2021 at 8:42 am

    A “religious objection” need not be a “recognized religious teaching.” See link above.

    CommoChief in reply to Juris Doctor. | October 31, 2021 at 10:37 am

    An individual can hold a sincere objection based upon their personal beliefs and conscience which is independent of any ‘ruling’ by an organized religious group. To suggest otherwise undercuts both the spirit and letter of our Constitution and history which makes clear that we have individual rights and individual liberty.

    What you are suggesting here would place individual rights into a stew pot controlled by a chef of some priestly class. You would elevate this priest to determine whether he approved of the exercise of the individual right by spooning this stew of rights into our bowl. You would place us into some Dickensian dystopia casting Citizens as Oliver Twist; ‘please sir, may I have some more’.

    That’s not a workable situation.

    20keto20 in reply to Juris Doctor. | October 31, 2021 at 2:20 pm

    Mandating an experimental “vaccine” is not Constitutional either. It has been neither fully tested nor proven to be effective in any way, shape or form. Don’t believe me? Look at two I countries–Israel and Ireland. Two of the most vaxxed countries in the world with two of the highest rates of CoVid infection in the world. The Vax protects you from what? I get so tired of hearing people say “follow the science” and then blatantly ignore the scientific facts. The only reason the vax was given EUA was because the “powers that CDC be” restricted the use of Ivermectin and Hydroxycloroquine. The other I country has proven conclusively that widespread use of Ivermectin and Hydroxycloroquine have reduced the number of cases and the severity of cases of CoVid. Almost to the point of eliminating it in the country. This is the second largest country population wise in the world. It is working for them yet our greedy, power mad “rulers” at CDC/NIH/NIAID won’t allow it to the point that they have forced Walgreens and CVS to refuse to fill valid prescriptions in order to stay on the “approved” list. This is absolute insanity. Where was the SCOTUS on this? Hiding in the shadows behind Lady Justice’s blindfold pleading ignorance. You 9 don’t have to plead ignorance, you show it too often in either rulings or failure to hear evidence. The judicial branch has ceded their power to the Intelligence community (you know, the crowd of Communists).

      Barry in reply to 20keto20. | October 31, 2021 at 7:34 pm

      “I get so tired of hearing people say “follow the science”…”

      “follow the science” in the lefty world primarily means:

      Do what I told you to do or we’ll kill you and your family.

      Secondarily, it guarantee’s the speaker/writer knows nothing about science.

      SteChatte in reply to 20keto20. | November 1, 2021 at 9:11 am

      This likely has less to do with the “shadow docket” theory and more to do with “shadow government.” The underlying weakness of representative government is that “representatives” can be bought, blackmailed, or otherwise co-opted. The ruling class doesn’t waste time on inefficient guilt trips. They bark orders and their pets like Amy Baby and Burp Kavanaugh obeisantly drool and wag their tails.

A deeply held religious belief does not have to come from the pronouncements of an organized religion.

Lucifer Morningstar | October 31, 2021 at 8:43 am

So what exactly was the point of those battles to get Kavanaugh and Barrett onto the Supreme Court, again?

Here is a religious argument from a Rabbi

Still the burden of proof should be put on them on why you should take it. Sure they would use their made up numbers and so called scientist but enough data to show its not anywhere near lethal as they make it, especially not to young and healthy people. There are alternatives to treatments now from many doctors they just dismiss because it’s not their agenda.

Antifundamentalist | October 31, 2021 at 10:37 am

It’s always seemed to me that if you need to make exceptions to a law to protect constitutional rights of the people that would want to exercise those rights, then the law isn’t Constitutional, and shouldn’t exist at all, for anyone. Why should we need to prove that we have a right to claim our rights?

I’m trying to figure out if they are both closet Socialists and would prefer a Communist country rather than a free Constitutional Republic, if they are trying to deny their Catholic upbringing and have become radical Socialists like the pope or if they were wolves in black robes just chomping at the bit to become little Merrick Garlands on the court. No matter which they are, one thing they are not is red blooded Americans! Sad that they have both betrayed our country so many times in such a short period. They have denied freedom of religion at every turn. We may have short memories. I just hope that they realize that God does not and it may take a lot of prayer and repentance on their parts if they hope to see the gates of Heaven. As they are currently positioned, they are headed directly for the gates of Hell!

as a “court of last resort” believe scotus is finished–since november of last year, believe the writing was on the wall

thank god the founders had the foresight to establish the 2A as believe it is that one alone that has preserved our individual liberties thus far–but of course, the progs know that

it most certainly will be their next target–if no longer have thel right as to what must injest in my own body, then believe we are truly approaching the edge of the cliff

So I understand that everyone is upset.
But here is another thought.
We criticize liberal justices for always following the party line.
Now we’re criticizing conservative justices for not always following the party line?
For me, one reason to support these folks is that they’ll think for themselves, even if I don’t always agree with them.