On referral from Justice Alito to the full court, the Supreme Court of the United States on Wednesday denied an application to halt the enforcement of Pennsylvania Governor Wolf’s shutdown order. As we reported earlier, the petitioners—led by a Republican candidate for the Pennsylvania General Assembly—had argued that Governor Wolf’s shutdown order violated the Fifth Amendment’s takings clause, the Fourteenth Amendment’s procedural due process and equal protection requirements, and the First Amendment’s rights to free speech and peaceable assembly. Governor Wolf and Secretary of Health Levine, in response, argued the shutdown order was a lawful exercise of the Governor’s police power—and the petitioners, in any case, were asking for the extraordinary remedy of an injunction in the guise of an application for stay.
There is no doubt the Supreme Court’s denial is a blow to the petitioners and victory for Governor Wolf and Secretary Levine. But the one-line order offers no view of the merits, and the petitioners’ petition for writ of certiorari remains before the Court. And even if the denial reflects the Court’s skepticism of this particular case, there are numerous other challenges to shutdown orders pending across the country—some of which already have found success in the lower courts. Moreover, the shutdown orders are sufficiently different, and the stakes are high enough, that we expect the number of challenges to increase regardless of the outcome in this particular case.