Thread by @ProfLWiley

I feel like I must be missing something. Roberts emphasizes that the order is not discriminatory (and gets the definition of “gathering” right, which is great!) - meaning rational basis review would apply under Smith, right? Regardless of any Jacobson standard switcheroo, right?

2/ Roberts seems to be citing #JacobsonWatch for its more anodyne propositions re: state police power & deference to elected branches on policy choices made under scientific uncertainty. Avoids describing it as an emergency powers case & doesn’t reference its standard of review.

3/ The last line (re: “clearly unconstitutional”) seems to reference the standard for SCOTUS to grant an injunction the lower court refused (which the first para distinguishes as a higher bar than for a stay of lower court intervention), quoting Shapiro treatise, not Jacobson

4/ If the last line references a procedural standard for imposing an injunction the lower ct. refused, rather than the standard Roberts would apply to the state gathering ban if review were granted (regardless of procedural posture), why is it foreboding?

5/ Kavanaugh’s dissent emphasizes discriminatory nature of what he calls an “occupancy cap” not applicable to, eg grocery stores & factories. Doesn’t cite Jacobson at all. I don’t see either Justice applying Jacobson the way the 5th circuit & others have as an emergency standard.

6/ I read Roberts to be saying the procedural posture of this case means it should be left alone, while indicating that if he were to review a gathering ban as applied to churches, he would side w/ the 4 liberal Justices in reviewing it as a neutral law of general applicability.

7/ Roberts’ use of Jacobson threads the needle nicely, IMO. He relies on it to say public health laws adopted under conditions of scientific uncertainty (not just in an emergency, but for routine matters like vaccination, too) are typically for elected officials to decide, BUT

8/ I don’t read Roberts as indicating he’d twist Jacobson into a rule that all public health emergency orders, regardless of which individual rights they implicate, should be overturned by the courts only if there’s a “plain, palpable invasion of rights”