Biden will need to convince the country, and thus the Court, that we are still in a real crisis.
Biden will need to convince the country, and thus the Court, that we are still in a real crisis.
T he history of the United States, insofar as concerns the vitality of civil rights in times of crisis, can be summed up succinctly. While a crisis ensues, when there is a real perception of threat to our security, the courts give the executive a wide berth.
They don’t exactly turn a blind eye. It’s more like slow-walking. Cases claiming infringement of fundamental liberties may be rushed into the justice system during a crisis, but courts will proceed cautiously.
Sometimes they’ll wait to issue rulings until the security threat has passed. In the heat of the Civil War, for example, when President Abraham Lincoln suspended the writ of habeas corpus and authorized detainees to be tried by military commission, the Supreme Court initially ducked the issue, claiming to lack jurisdiction (Ex Parte Vallandingham). Only after the war ended, only when the crisis had ebbed, did the Court hold, in Ex Parte Milligan, that Americans may not be subjected to courts-martial if the civilian courts are open and functioning. While it did not dispositively rule that Lincoln’s suspension of the writ was unconstitutional, the Court took pains to note that, to the extent such an action appeared to require congressional authorization, Congress had in fact affirmed the president’s action.
Other times, when crises rage, the Court is derelict. The classic case is Korematsu v. United States, during the height of World War II, when the justices upheld President Franklin D. Roosevelt’s internment of American citizens of Japanese descent, rationalizing that this was a reasonable measure to counter the threat of espionage. The ruling ranks with the lowest chapters in the Court’s history, as Justice Robert Jackson rued at the time in dissent.
Just three years ago (in Trump v. Hawaii), Chief Justice John Roberts, on behalf of the Court, quoted Jackson in observing that Korematsu “has no place in law under the Constitution.” It was, Roberts added, “gravely wrong the day it was decided, [and] has been overruled in the court of history.” That would be cold comfort to Fred Korematsu, who died in 2005, 13 years before Roberts’s declamation. By then, President Gerald Ford had formally apologized in 1976 for the internment, and a federal court in 1983 had overturned Korematsu’s conviction for evading internment.
Still, systematically speaking, a High Court mea culpa about justice delayed is not justice denied. When the Supremes finally do correct error, it establishes norms for future cases.
That doesn’t mean the Court will be eager to jump into the next fray, but it does mean that presidents have bright civil-rights lines to heed when that next fray comes along. There is a steep political cost to ignoring them: A Supreme Court precedent is a powerful weapon for a president’s congressional opposition to invoke. Indeed, the Biden administration just got a taste of that. When the president rationalized that the COVID-19 pandemic gave him license to extend his patently lawless eviction moratorium, congressional Republicans hammered him by invoking an opinion by Justice Kavanaugh (a concurrence and thus not technically a precedent, but close enough under the circumstances).
I would suggest that there is an important lesson to be teased out of the COVID cases.
Initially, the Court was unwilling to second-guess draconian executive action. California governor Gavin Newsom imposed numerical restrictions on public gatherings, including drastic limits on attendance at religious services. The Court upheld Newsom’s edict over a religious-liberty challenge in late May 2020 — i.e., in the first weeks of the pandemic, when it was not yet clear how threatening the virus was. Explaining his deciding vote, siding with what was then a four-justice progressive bloc (with the since-deceased Justice Ruth Bader Ginsburg still on the Court), Chief Justice John Roberts struck a dire tone:
The . . . Executive Order aims to limit the spread of COVID–19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others. The Order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency.
After opining that Newsom’s restrictions did not appear (at least to Roberts) to discriminate unduly against religious worship, the chief justice added:
Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. . . . When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. . . . Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people. [Citations and internal quotations omitted]
To be sure, Roberts is notoriously risk-averse, more willing than most to steer his tribunal away from deciding the tough, significant legal controversies on which it is our system’s ultimate arbiter. Here, though, he was following a well-trodden path. When the country senses that there is a real peril — say, a hot war, the immediate aftermath of a terrorist attack, or a raging epidemic in which people are dying in droves — the Supreme Court can be relied on to stay its hand.
The federal judiciary exists to be a bulwark on behalf of individual liberty, guarding against oppressive government action. That sounds great . . . but it means, necessarily, that if the Court is going to be active in a crisis, it will be to stop some security measure the government wants to impose. In that scenario, stopping means putting lives at risk. The Court does not want to be blamed for lost lives, simple as that. And the justices have ways of avoiding blame — they can slow litigation down without enjoining the executive branch from acting; or they can rationalize that, in our self-determining republic, life-and-death decisions should be made by the political officials accountable to the people whose lives hang in the balance.
Things change, though, when the sense of peril ebbs.
Six months after the chief justice’s ode to judicial restraint, the COVID situation looked very different than it had in May. We seemed to have come out of the worst of the pandemic. Crucially, vaccines had been developed, and their rollout was imminent. Meanwhile, we’d become much more adept at treating the virus, and the anticipated dread of hospitals overrun by COVID patients and unable to treat other medical emergencies had not materialized. Public patience with restrictions, which had been fairly high in the pandemic’s early weeks, was now wearing thin: Many restrictions seemed arbitrary; there was a two-tiered, politicized system in which restrictions were ignored with impunity if people were flouting them for the “right” reasons (such as rallying for “racial justice”); and time after time, some of the most authoritarian public officials were caught violating the suffocating mandates they’d prescribed for everyone else. Significantly, moreover, the Trump Justice Department was actually in court challenging state-government restrictions as unduly severe — a departure from the DOJ default position, historically, of defending vigorous government action in times of crisis.
Of course, this didn’t mean that concerns about COVID had evaporated, just that the perception of impending doom had eased. Thus, in late November, the Court was of a very different mind. Even though the justices could have ducked the issue on procedural grounds, a majority of the Court rejected restrictions on attendance at religious services imposed by New York’s then-governor Andrew Cuomo. Presented with restrictions that were patently capricious (e.g., limiting worship but permitting without restriction other types of gatherings and commercial activities), the Court did not mince words:
Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.
In a biting concurrence, Justice Neil Gorsuch intimated that medical emergencies were a suspect basis for deferring to executive power but could not, in any event, justify deference once emergency conditions no longer obtained:
Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. . . . Courts must resume applying the Free Exercise Clause. Today, a majority of the Court makes this plain.
Of course, it is fair enough to point out that, just as the pandemic’s circumstances had changed, so had the Court. Justice Ginsburg had been replaced by Justice Amy Coney Barrett. Philosophically, this marked a shift away from a progressive orientation predisposed to give government a wide berth, toward an originalist orientation more attentive to individual liberty and skeptical about government claims of power that are not firmly rooted in the Constitution, or at least obvious from statutory text.
The Biden administration has now taken a more imperious turn. The president has upped the ante from his lawless edict on evictions to a sweeping nationwide vaccine mandate. There is no reason to believe Biden will stop there. Republicans have the numbers to block him in Congress, and if past is prologue, those numbers will get worse for Biden after the midterms. If he cannot appease his party’s rancorous progressives with legislation, his only option is to try to rule by executive order. The Court’s shift is going to be a challenge for him.
A challenge, but not the challenge.
It is not for nothing that Rahm Emanuel, in his incarnation as first chief of staff in the Obama–Biden administration, infamously proclaimed, “You never want a serious crisis to go to waste.” In a serious crisis, the Supreme Court tends to go AWOL . . . or worse. Biden’s challenge will be to convince the country, and thus the Court, that we are still in a real crisis — something beyond his own ineptitude or his advisers’ stage-managing.
The Court’s conservatives will be open to arguments that the Constitution gives the elected branches wide latitude to deal with real threats. They will not be open to claims that the Constitution is a dead letter just because the president says so.