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 percentage capacity limitations, and respondents are not enjoined 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 applicants presenting new evidence to the District Court that 

the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner. Should the petition for a writ of 

certiorari be denied, this order shall terminate automatically. 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 percentage 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 politically accountable officials with the “background, competence, and expertise to assess public health.” South Bay 

United Pentecostal Church v. Newsom, 590 U. S. ___, ___ 

(2020) (opinion concurring in denial of application for injunctive 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 appreciation or consideration of the interests at stake.

I adhere to the view that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.” Ibid. (internal 

quotation marks and alteration omitted). But the Constitution also entrusts the protection of the people’s rights to 

the Judiciary—not despite judges being shielded by life tenure, 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 injunctive relief.

I agree with JUSTICE GORSUCH’s statement, save its contention that the Court should enjoin California’s prohibition 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 applies 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 chorister 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 unfortunately shed little light on the issue. As the order notes, 

however, the applicants remain free to show that the singing 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 reflects “‘subtle departures from neutrality,’” “‘religious gerrymander[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 businesses. 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, California 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% occupancy or more. See ibid; see also ___ F. 3d ___, 2021 WL 

222814, App. A (CA9, Jan. 22, 2021). Apparently, California 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 interest. ___ 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 expertise 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 officials 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 satisfied 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 especially 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 increase 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 suffering many have experienced in this pandemic. But California errs to the extent it suggests its four factors are always 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 concerns 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 provisions of the statute, which are both underinclusive and 

overinclusive.”).

Consider California’s arguments in turn. The State presumes that worship inherently involves a large number of 

people. Never mind that scores might pack into train stations 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 confession, 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 businesses.

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 outdoors. 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 narrower options it thinks adequate in many secular settings—

such as social distancing requirements, masks, cleaning, 

plexiglass barriers, and the like—cannot suffice here. Especially 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 terminals. 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 curiam). 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 understandable. 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 

—————— 1While 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 Injunction, App. G–3. 
Cite as: 592 U. S. ____ (2021) 5 

Statement of GORSUCH, J.

what it first appears. It seems California’s powerful entertainment industry has won an exemption.2 So, once more, 

we appear to have a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) 

while denying similar largesse to its faithful. See, e.g., Calvary 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 legitimate 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 

—————— 2There 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 rationalbasis 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) (“Singing 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 guidance.” 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 governing 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 either.
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 institutions 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 requirements 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 before, 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 pandemic-related sacrifices for months, adopting new benchmarks 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 extreme 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 displaces 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 exception 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 interests “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 application 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 frequenting a restaurant, winery, or bar. So the activities are 

both religious and secular—and many of the secular gatherings, too, are constitutionally protected. In all those communal activities, California requires mask wearing and social 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 levels—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 religious or secular—take place outdoors (with no limits on attendance). Given California’s mild climate, that restriction—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 justified 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 transmission. In written testimony in this case, Dr. James Watt, the 

Chief of Communicable Diseases at the California Department of Public Health, explained: “There is broad consensus 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 “increase[]” in risk when gatherings “are of an extended duration, and when there is a lot of verbal interaction, especially 

when there is group singing, chanting, or other loud vocalization” like speeches or sermons. Decl. of Dr. George Rutherford in No. 3:20–cv–865, Doc. 81–4, ¶91 (Rutherford 

Decl.). That risk, of course, extends not only to the participants 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. Rutherford explained, because shopping “involves less close 

proximity” with other people—and for less time—than does 

an indoor worship service, lecture, or similar event. Rutherford 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 because 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 authorities.” 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 undisputed epidemiological findings, that congregating together 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. Crucially, California has applied each of those rules equivalently to religious activities and to secular activities, including 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 hardware 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 demands. 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 quotation marks and alteration omitted). First among them is 

that judges “lack[] the background, competence, and expertise to assess public health.” Ibid. To state the obvious, 

judges do not know what scientists and public health experts 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 scientific research on how COVID spreads, or studied the strategies for containing it. So it is alarming that the Court second-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., dissenting). In the worst public health crisis in a century, this 

—————— 2For 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 restrictions 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 virus 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 order raises questions. When are such capacity limits permissible, 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 record evidence about epidemiology, or on naked judicial instinct? 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., concurring) (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 tenure 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.