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What did the US Supreme Court do last night? A thread for non-lawyers.
One of the things non-lawyers often get wrong about constitutional rights is that they think of them as absolute limits on what government can do.
But in reality, constitutional law is mostly various balancing tests courts use to figure out when individual rights protections require/empower judges to strike down government actions & when the government’s action is ok.
In situations where the government has a very strong interest (pandemic) these balancing tests often amount to instructions to courts about how rigorously they should probe the government’s evidence that restrictions will actually work.
E.g., should the judges just take the government's assertions at face value that restrictions might help? Require air-tight proof that restrictions will have a big effect and no other options are on the table? Something in between?
Jacobson v. Massachusetts, a canonical 1905 case upholding a smallpox vaccination mandate widely cited by federal courts over the last century, held that collective needs may, under the right circumstances, outweigh individual rights.
Jacobson also said courts should be deferential toward the scientific assessments & policy choices of legislatures & the decisions of agencies that legislatures delegate authority to. Essentially, in 1905, SCOTUS told judges they shouldn't be armchair epidemiologists.
Mandatory vaccination was controversial in the early 1900s. But the Supreme Court accepted scientific consensus that it was effective & safe for most people (they implied that if there weren't a medical exemption for people who can't be safely vaxxed, that would be different).
The new Supreme Court majority has tossed out Jacobson, saying it’s irrelevant. Even the dissenting justices have been shamed by Gorsuch into no longer citing it, even when they say things that would normally be followed by a citation to Jacobson.
Backstory from November: Gorsuch snidely trolled Roberts for bringing up Jacobson a few times in 2020. Lots of beef brewing between those two and Gorsuch is... we'll go with cocky.
Part of the problem is that some courts started using Jacobson in a new way in 2020 – as “one weird trick” for upholding emergency orders without even saying which rights were at issue or providing much analysis at all. Like a rubber stamp.
When SCOTUS rejected “Rubber Stamp Jacobson” in November, they seem to have thrown the baby out with the bathwater.
Baby = Jacobson’s longstanding interpretation as a case about the social contract & the idea that collective needs can & do outweigh individual rights. Bathwater = weird twisted version of Jacobson used to uphold state bans on all abortions during early months of pandemic.
In addition to treating Jacobson like a pariah, the new SCOTUS majority is doing some dangerous things with how it defines as what counts as “discrimination” on the basis of religion (and needlessly insulting science and scientific experts in the process).
Covid orders have effects on all sorts of different individual rights. Rights to assembly, expression, travel, etc. But the cases SCOTUS has been getting involved in focus on religious liberty, specifically on government discrimination against religious entities & activities.
Longstanding precedent holds that generally applicable rules that don’t single out places of worship/religious activities for worse treatment than comparable secular places/activities are ok so long as they pass a low bar where the courts don’t really question the govt's evidence
But if a rule singles out houses of worship/religious activities for worse treatment than comparable secular places/activities then it has to pass the strict scrutiny test (requiring very strong evidence that the law will work to achieve a compelling government purpose)
In spring/summer, the former SCOTUS majority essentially said as long as limits on religious services weren’t stricter than rules for secular settings w/ similar risks (Roberts used concerts & lecture halls as examples), they’re constitutional. Roberts was in the majority then.
Kavanaugh & friends wrote spring/summer dissents saying church services were no riskier than grocery stores. Because… they just think that’s true & that’s enough.
It’s a fringe argument that’s been around for a while: that to be “nondiscriminatory,” laws have to give “most favored nation” status to churches, etc. Unless churches get the best treatment given to any other type of facility, the order is unconstitutionally discriminatory.
After Ginsberg died & the Senate pushed through their nick-of-time pre-election confirmation of Barrett, Roberts now finds himself in the minority and Kavanaugh finds himself in the majority.
So the majority of the Court has now embraced the previously fringe view that government has to treat churches as the highest-priority facilities to avoid unconstitutional "discrimination" against religion.
They aren’t providing a lot of helpful guidance, which will paralyze the states, which is probably the goal. E.g., it’s pretty clear they require churches to be treated at least as well as grocery stores. But what about hospitals & fire stations?
Covid orders involve assessments of risk *and* priority (lots of government interventions do). The Supreme Court's recent decisions conflate risk assessment & policy decisions about priority in ways that make it really hard for states to figure out the logic they’re following.
Bottom line: The new SCOTUS majority ignored the scientific evidence that church services are riskier than grocery shopping to get to the point where they're supposed to probe the evidence more deeply to ensure orders that discriminate on the basis of religion are justified.
Some thoughts here on what states (& local governments) should do next to protect the population from the risks (to the community, not just to attendees) created by large gatherings where people from many households spend sustained time together chatting & singing indoors: https://twitter.com/proflwiley/status/1358377866346561539
