As a student pursuing legal studies here at Brandeis, I try to be somewhat up to date on cases that the Supreme Court has decided or that are in the system. (It also helps that my classes force me to look into these cases!) Recently, I was searching for information for a paper I have to write in a class on American civil liberties, specifically information regarding free exercise cases and when the government has a compelling enough interest to limit someone’s claims to freely exercise their religion. During my research I came across an article on the case Tandon v Newsom. This case was brought up to the Supreme Court as a shadow docket case—meaning the court didn’t actually hear it or review many materials. It is an injunction pending appeal. This shadow docket decision was hasty—as most are—and was under four pages in length. But the results of the decision were highly questionable and could possibly alter the precedent of free exercise cases in the U.S. post-Employment Division v. Smith.
Admittedly, I am not a legal scholar. I am a sophomore undergrad with way too much time on my hands who is procrastinating a term paper on this very topic. So take what I say in this piece lightly, and I encourage you readers to look into this subject yourself.
When reading through the decision in Tandon v. Newsom I couldn’t help but think that if this decision has any precedential weight, it will come to bite the conservative-leaning court in the butt later on. The decision states that the state of California did not have sufficient evidence of COVID-19 spread to limit religious gatherings while allowing other, secular activities to occur, such as opening hair salons and restaurants. The short opinion therefore created a new rule for free exercise cases, termed the “most favored nation” rule, which makes any secular exemption under a law/regulation a valid claim for a religious exemption.
With this rule will come more claims to religious exemptions for religions that they may not respect. For example, they may have a hard time invalidating Muslim or Native American religious beliefs through this new rule. If the court ends up undermining their own decision in Tandon v. Newsom, that will threaten their legitimacy and make the conservative-leaning court a much more questionable source of legal authority than it already is.
Furthermore, these threats to Supreme Court legitimacy don’t stop with this specific decision and hypothetical, but the court may make decisions that the majority of American citizens do not agree with. If the court moves to restrict women’s reproductive right access, they will have to face the fact that as of 2019, 77% of Americans believed that Roe v Wade should not be overturned. With questioning privacy cases such as Roe v. Wade may also come the revisiting of Obergefell v. Hodges, the case that legalized gay marriage across the United States.
Trump’s recent appointments of the highly religious and conservative judge Amy Coney Barrett and the controversial Brett Kavanaugh also came with a significant amount of backlash from the public, which could lead to the majority of Americans disagreeing with opinions that come out of the Supreme Court in the upcoming years. As of last summer, Brett Kavanaugh was the least favorable justice on the court with24% of respondents saying he is very unfavorable. Justice Barrett was questionably appointed just a week before election day, with a close vote of 52-48 in the Senate. To me, this screams court legitimacy issue waiting to happen!
With all of this occurring at a very stressful time in all of our lives, remember that Supreme Court justices are not all-knowing. Question their decisions and their legitimacy when they do not uphold the American values of true equality and justice. Also, laugh at them, because what the heck is happening in the U.S. anymore?
If you are interested in reading more about Tandon v. Newsom, read the ninth circuit court of appeals summary and conclusion here.
