ROBERTS, C. J., dissenting
Nken v. Holder, 556 U. S. 418, 428 (2009) (internal quotation marks omitted). An order telling the Governor not to do what he’s not doing fails to meet that stringent standard.
As noted, the challenged restrictions raise serious concerns under the Constitution, and I agree with JUSTICE KAVANAUGH that they are distinguishable from those we considered in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020). See ante, at 1, 3–4 (concurring opinion). I take a different approach than the other dissenting Justices in this respect.
To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.
One solo concurrence today takes aim at my concurring opinion in South Bay. See ante, at 3–6 (opinion of GORSUCH, J.). Today’s concurrence views that opinion with disfavor because “[t]o justify its result, [it] reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts, 197 U. S. 11 (1905).” Ante, at 3. Today’s concurrence notes that Jacobson “was the first case South Bay cited on the substantive legal question before the Court,” and “it was the only case cited involving a pandemic.” Ante, at 5. And it suggests that, in the wake of South Bay, some have “mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic.” Ibid. But while Jacobson occupies three pages of today’s concurrence, it warranted exactly one sentence in South Bay. What did that one sentence say? Only that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the
