Justice Kavanaugh Splits the Baby on Eviction Moratorium

There is good news and bad news in yesterday’s SCOTUS ruling on the CDC’s eviction moratorium.

The good news is that a majority of the Court agreed on the merits with the stay applicants, the Alabama Association of Realtors, that the moratorium was unlawful. As Justice Kavanaugh put it, “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” and “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”  So, to the extent the plaintiffs’ legal strategy here was to stop the CDC from using the pandemic as a rationale for micromanaging the American economy, they succeeded, and the moratorium will now end in July.

But that’s where the bad news begins.

Justice Kavanaugh’s method of delivering that conclusion was uninspired. Some of his critics accuse him of trying to be everything to everyone, at the expense of sound judging. I’ve written an entire book defending him, and I am hopeful that he is going to turn out to be a great justice, so it gives me no pleasure to say that his concurring opinion in this case is an unconvincing exercise in the kind of needle-threading that his critics accuse him of engaging in. I agree with Ilya Shapiro, who noted on Twitter that the opinion was “disingenuous” and that as a D.C. Circuit judge, Kavanaugh had done the opposite, holding that “movants can’t obtain [a] stay if they fail to show likelihood of success on the merits.” Yet here with the eviction moratorium, Shapiro pointed out that Kavanaugh wrote that the government was “entitled to a stay even though CDC went beyond statutory authority.”

So it’s a good outcome that the eviction moratorium was declared unlawful and that it will end in July. But the justices aren’t on the Court to reach outcomes that they like. They are there to be faithful agents of the rule of law, and to write clear, persuasive opinions that adhere to the law and the Constitution. Justice Kavanaugh has demonstrated time and time again that he is more than capable of doing that, so it is disappointing that in this case he decided to split the baby rather than let the law and the Constitution carry the day.