Cite as: 592 U. S. ____ (2021) 1

R OBERTS

, 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 J USTICE
K

AGAN 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 se rvices against the applicants pending disposition of the petition for a writ ofcertiorari. The application is denied with respect to the percentage capacity limitations, and respondents are not enjoined from imposing a 25% capacity limitation on indoor

w orship services in Tier 1. The application is denied with respect to the prohibition on singing and chanting duringindoor services. This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not app lying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner. Should the petition for a writ ofcertiorari 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.

J USTICE T HOMAS and J USTICE G ORSUCH would grant the application in full.

J USTICE A LITO 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

R OBERTS

, C. J. , concurring

and would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor singing and chanting. J USTICE A LITO 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 t o other activities it classifies as essential.
C HIEF J USTICE R OBERTS , 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 presen t determination

— that the maximum number of adherents who can safely worship

in the most cavernous cathedral is zero

— appears to reflectnot 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 ( K AGAN , J., dissenting), but because they are. Deference, though broad, has its limits.Cite as: 592 U. S. ____ (20 21 ) 1

B ARRETT

, 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 ]

J USTICE B ARRETT , with whom J USTICE K AVANAUGHjoins, concurring in the partial grant of application for injunctive relief.
I agree with J USTICE G ORSUCH ’s statement, save its contention that the Court should enjoin California’s prohibition on singing and chanting during indoor services. The applican ts 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 casecomes 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 (andthus 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 a s neutral. Butthe 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 acco rdingly.Cite as: 592 U. S. ____ (20 21 ) 1

Statement of G ORSUCH

, 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 J USTICE G ORSUCH

, with whom J USTICE
T HOMAS and J USTICE A LITO join.
Often, courts addressing First Amendment free exercisechallenges 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 stringentregulations on religious institutions than on many businesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own ro w. 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% occu pancy, 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 se rvices. 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 First2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM

Statement of G ORSUCH

, J.

Amendment unless the State can show they are the leastrestrictive 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 constitutionalright 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 th e government’s assertions, and our precedents makeplain 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 cri sis

— we have a duty to hold governments to the Constitution

. Still, California says it can thread the needle. It insiststhat 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

d oubt that the State has a compelling interest in reducingthat 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 worshi p, or always absent from the other secular activities its regulations allow. Nor has Californiasought 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 Cour t has long used toCite as: 592 U. S. ____ (2021) 3

Statement of G ORSUCH

, J.

identify laws that fail strict scrutiny. See, e.g., First Nat. Bank of Boston v. Bellotti , 435 U. S. 765, 793 (1978) (TheState’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

peop le. 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 someworshippers may seek only to pray in solitude, go to confession, or study in small gro ups. 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 restri ctive option of limiting the number of people who may gather at one time is insufficient for houses of worship, even though it hasfound that answer adequate for so many stores and businesses. Next, the State tells us that worshippers are sure to seek
clo se 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 touc h 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 explai n 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 together4 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM

Statement of G ORSUCH

, 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 b us 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 abunda ntly 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 f ollowed 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 categoricalban 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 no t just at indoor worship services, but at indoor private gatherings, schools,
and restaurants too. But, on further inspection, the singing ban may not be

——————

1 While today’s case concerns the total ban on in door 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 App lication for Writ of Injunction, App. G –3.Cite as: 592 U. S. ____ (2021) 5

Statement of G ORSUCH

, 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., Calvar y Chapel Dayton Valley v. Sisolak , 591 U. S. ___, ___ 2020) ( G ORSUCH , J., dissenting from denial of application for injunction relief ). Once more, too, the State has not explained how a totalban 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 ca ntor 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 obs erving that the

——————

2 There 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 th e Ninth Circuit applied rational

basis 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. S ee Record in No. 20

– 56358, D oc

. 18

– 4, p. 124 (CA9) (decl

. of Screen Actors Guild G eneral C ounsel) (“Singing in larger groups [inside the studio] is permitte d but only

. . . with additional protections

. ”)

. California’s most recent edict prohibits singing at “private” “social situations” as well as “activities protected by the FirstAmendment to the extent they are not already permitted by other guidance.” Ca lifornia 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. A nd California does not squarely deny as much here

. S ee 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 G ORSUCH

, 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

ass ume 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 l east 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 goalpost s 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 s oul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.Cite as: 592 U. S. ____ (2021) 1

K

AGAN

, 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 ]

J USTICE K AGAN , with whom J USTICE B REYER and

J USTICE S OTOMAYOR join, dissenting.

Justices of this Court are not scientists. Nor do we knowmuch about public health policy. Yet today the Court displaces the judgme nts of experts about how to respond to a raging pandemic. The Court orders California to weakenits 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 tha t 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 relig ion. Church of Lukumi Babalu Aye,

Inc. v. Hialeah , 508 U. S. 520, 53 2 (1993) . A government cannot put limits on religious conduct if it “fail[s] to prohibitnonreligious 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 be2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM

K

AGAN

, 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) (R OBERTS , C. J., concurring in denial of applic ation for injunctive relief ) (slip op., at 2)

. The restricted activities include attending a worship service or politicalmeeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are
both reli gious 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 transmis sion. 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 Californi a’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

K

AGAN

, J. , dissenting

place outdoors throughout this winter.
California’s scheme ho mes in on these indoor gatheringsbecause they pose a heightened danger of COVID transmission. In written testimony in this case, Dr. James Watt, theChief 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 Ca l.), 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 a n extended duration, and when there is a lot of verbal interaction, especiallywhen there is group singing, chanting, or other loud vocalization” like speeches or sermons. Decl. of Dr. George Rut herford 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. TheState’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 wor ship 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

K

AGAN

, 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 ofa 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 atten dance 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.
Wh ere the State has regulated religious conduct, it has as
well regulated “ nonreligious conduct that endangers [its]
interest s 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 mu st 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 activit ies thought to pose a muchlesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its publicCite as: 592 U. S. ____ (2021) 5

K

AGAN

, 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 “pr incipally entrusts the safety and the health of the people ” to state officials, not federal courts. South Bay , 590 U. S., at ___ (R OBERTS , C. J., concurring ) (slip op., at 2) (internal quotation marks and alteration omitted). First among them is that jud ges “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 decid ing 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 offici als, and displaces
their conclusions with its own. See Roman Catholic Diocese of Brooklyn v. Cuomo

, ante , at 3 (S OTOMAYOR

, J. , dissenting). In the worst public health crisis in a century, this

——————

2 For 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 Cat holic 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 ra te, no court with any sense of modesty

— can make that claim here. California’s hospitals are nearmaximum capacity, and over 3,500 state residents perished from the virus just last week.6 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM

K

AGAN

, J. , dissenting

foray into armchair epidemiology cannot end well.
And who kn ows 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 injunc tion stops short of giving thechurches 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 import ant

— dothe 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 l egal environment to craft COVID poli cies 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 in to an area where uncertainty has human costs. All this from unelected actors, “not accountable to the people.” South Bay , 590 U. S. , at ___ ( R OBERTS

, 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 d ecision causes suffering , we will not pay. Ourmarble 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.