“The court cannot imagine a more critical public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.”
— Judge John Kissinger, Merrimack County Superior Court, statement upon case dismal, March 20, 2020.
The global spread of coronavirus has forced policymakers to weigh safety concerns against expected rights and freedoms. In the United States, restrictions on movement and free assembly—for example, “shelter-in-place” orders—challenge norms and rights that define American society and in doing so raise a host of constitutional issues. When perceived freedoms are curtailed, Americans frequently turn to courts as protectors of civil rights and liberties.1Alexander Hamilton, Federalist No. 78, in The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classics, 2003). In this essay, we sketch a more complicated picture, exploring how US courts have interpreted government power in times of crisis, showing that courts frequently act as legitimating agents that promote and expand governmental power, rather than as countermajoritarian2Previously, courts have been understood as acting contrary to the majority’s will, as expressed by representative institutions, as in Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962; repr. Yale University Press, 1986). agents that curtail actions taken by the other branches.3Howard Gillman, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96, no. 3 (2002): 511–524.
A (counter)-majoritarian branch?
Nearly 180 years ago, Alexis de Tocqueville noted that, “There is hardly any political question in the United States that sooner or later does not turn into a judicial question.”4Alexis de Tocqueville, Democracy in America, ed. Eduardo Nolla (Indianapolis, IN: Liberty Fund, 2012), 441. This observation remains poignant as the United States confronts public health crises from the spread of the novel coronavirus. Unilateral action is needed to prevent the spread of Covid-19. Yet, swift and sweeping state action can easily trample on expected freedoms. In response, courts are called upon to review contentious governmental actions or policy decisions, often provoking strong responses. Across the United States, litigants have challenged stay-at-home orders in court, alleging that these state orders violate constitutionally protected rights and liberties.
During crises, public safety mandates and state police power frequently collide with expected individual rights and freedoms. For example, the City of Newark, New Jersey, warned residents that false or baseless reporting on the coronavirus will be criminally prosecuted, thus curtailing freedom of speech protections ensured by the First Amendment. In such cases, the willingness to engage in judicial review—a court’s ability to declare actions unconstitutional—can illuminate the degree of deference the judiciary shows the other branches of government. The question becomes, how deferential will courts be toward broad government action restricting rights and liberties in the name of ensuring public health and safety?
Quarantines, state power, and extant jurisprudence
Prior to ratifying the Constitution, states frequently instituted isolation and mass quarantines to prevent the spread of communicable diseases.5Edward P. Richards, “The Jurisprudence of Prevention: The Right of Societal Self-Defense against Dangerous Individuals,” Hastings Const. LQ 16 (1988): 329. Prior to the nineteenth century, states retained near-unfettered authority to regulate public health.6“As regards dangerous persons and conditions, the responsibility for public health and managing the mentally ill traditionally rested with the states, while the federal government managed terrorists and other national security threats.” Richards, “The Jurisprudence of Prevention,” 30.
Needing to combat diseases such as malaria, yellow fever, typhoid, and cholera, states exercised sweeping powers that were neither controversial nor seen as preempted by the Constitution or the Bill of Rights. Judges understood the severity of these threats, generally, taking both an expansive and deferential posture to state police power.7For context, the yellow fever epidemic of 1793 killed 10 percent of the population, bringing civil society to the brink of demise. John Harvey Powell, Bring Out Your Dead; The Great Plague of Yellow Fever in Philadelphia in 1793 (Philadelphia: University of Pennsylvania Press, 1993).
Existing US case law provides examples of judicial deference to the states during health crises. In Morgan’s Steamship Co. v. Louisiana Board of Health8118 U.S. 455 (1886). the Supreme Court held that the power to quarantine is reserved to the states unless preempted by Congress, either through similar legislation or by forbidding state action. Further establishing that public health remains a power reserved to the states, Jacobson v. Commonwealth of Massachusetts9197 U.S. 11 (1905). held that the Massachusetts legislature could both empower local health departments to require smallpox vaccinations and enforce this requirement through criminal fines. As the Court notes:
[P]ersons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned.10Id., at 26.
Adjudication under Covid-19
There are both recently litigated and pending cases drawing on these historical precedents, suggesting a generalizable jurisprudence regarding the courts’ tendency to defer in times of crisis. Some cases have challenged stay-at-home orders on the grounds that they violate constitutionally protected rights to assembly and free exercise of religion. In New Hampshire, three individuals challenged the state’s stay-at-home order banning gatherings of 50 or more people. The superior court swiftly dismissed the lawsuit, declaring that, “[t]he court cannot imagine a more critical public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.” Given the perceived severity of the coronavirus, courts stand wary of curtailing state police power.
Florida provides another important case study. Pastor Rodney Howard-Browne and other faith leaders defied stay-at-home orders and held in-person religious services, arguing that such orders circumvented religious freedoms. Although these cases have yet to be initiated or are still pending, it is imaginable that courts will defer to state action, citing Employment Division v. Smith,11494 U.S. 872 (1990). which held that neutral laws of general applicability restricting religious liberty are permissible. Since these orders do not specifically target religious organizations, leaving other large gatherings alone, it is likely that courts will view social distancing orders as meeting a compelling governmental interest: public safety.
Two unlikely bedfellows—gun rights advocates and abortion clinics—have challenged state police powers citing alleged violations of Second and Fourteenth Amendment rights, respectively.
The National Rifle Association sued New York State, where gun stores were forced to close temporarily as nonessential businesses. While litigation was pending, however, the NRA and other gun groups successfully lobbied the White House to add gun stores to its list of essential businesses, and the case became moot.
In Texas, Governor Greg Abbott banned “nonessential” medical procedures, purportedly in an effort to preserve hospital capacity to treat coronavirus patients. The governor’s order applied to all abortion procedures except those deemed medically necessary to protect a woman’s health. Abortion providers filed a lawsuit in federal court seeking to overturn the ban. The Fifth Circuit ruled that Texas could continue to prohibit abortions given, “the escalating spread of Covid-19 and the state’s critical interest in protecting the public health.”12Page 3. Abbott’s directive has since expired and been replaced with a new order that does not ban abortions. As with the NRA case, courts deferred intervention until the policies of the executive changed and action was no longer an option.
Why deference is prudent
Constitutional rights and liberties have limits. Importantly, in a healthy democracy, citizens should challenge those limits—even if segments of society believe the litigation absurd. Yet, the crucial question during times of crisis is: will courts take an expansive view of freedoms, or will they defer to greater police powers?
Research suggests judges “have a strategic incentive to anticipate and then react to the preferences of elected officials,”13Lee Epstein, Jack Knight, and Andrew D. Martin, “The Supreme Court as a Strategic National Policymaker,” Emory Law Journal 50, no. 2 (2001): 583–611. to avoid having their decisions ignored or overridden. As Alexander Hamilton notes in Federalist No. 78, “The judiciary, on the contrary, has no influence over either the sword or the purse” and depends upon the other branches for the enforcement of its judgments. An ignored decision can undermine judicial legitimacy and opens the door to more consistent circumvention. Judicial deference, in many ways, is a synonym for judicial self-preservation.
In the age of coronavirus, judicial deference has the potential to legitimate prohibitions not just on rights viewed differently across partisan lines (like gun rights and reproductive rights), but also those that are universally recognized. Consider the California Highway Patrol’s ban on protests occurring on state property, which was implemented after participants in a mid-April demonstration against the state’s stay-at-home order violated social distancing norms. Although litigation challenging these actions has yet to be initiated, the courts’ willingness to allow the curtailing of rights sets a precedent for expanding governmental power for such actions.
Drawing on existing case law, current judicial behavior suggests that courts are inclined to view state policing power as passing even the strictest doctrinal scrutiny. Of course, citizens have other means of demanding rights and freedoms beyond the judiciary. In times of crisis such as these, the responsibility often falls on citizens to weigh their rights and freedoms at the voting booth, or in making demands from their elected officials. Still, courts in the United States remain important forums for dispute resolution, and their decisions—in particular those by the US Supreme Court—have an uncanny ability to obstruct or legitimate government action.
With so many uncertainties around the duration of the Covid-19 crisis, judicial deference to state power seen in these cases has the potential to dramatically tip the scales in these contentious conversations and expand state police power.
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