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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