The very end of California's opposition brief is something of a proffer to the Court–if you rule against us, please leave the percentage restrictions in place.
Should this Court disagree, however, it would be critical for it to tailor any injunction and preserve some latitude for state public health officials to limit the number of people attending large and communal gatherings indoors, in order to mitigate the virus's spread. Cf. Roman Catholic Diocese, 141 S.Ct. at 68 ("[W]e should respect the judgment of those with special expertise and responsibility in this area."). The court of appeals has already enjoined the numerical capacity limitations in Tiers 2 and 3, South Bay App. A 47-49, and this Court has recognized that, even with those caps, the limitations in Tiers 2 through 4 are "far" less restrictive than the New York restrictions that were enjoined in Roman Catholic Diocese, 141 S.Ct. at 67 & n.2.57 While the State firmly believes that the Tier 1 restrictions are constitutional and critical to preventing excessive spread of the virus, if the Court were to enjoin those restrictions, it should leave the percentage capacity restrictions in Tiers 2 through 4 in effect, and specify that the State may impose the Tier 2 percentage capacity limitations on counties in Tier 1. Cf. Roman Catholic Diocese, 141 S. Ct. at 68 (leaving in place proportional capacity limitation). It would also be critical to allow the State to continue imposing requirements such as "social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services." Id. at. 69 (Gorsuch, J., concurring).
Given this posture, Chief Justice Roberts will have an opportunity to rule on a case that is not moot.
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