On Monday, U.S. District Court Judge William S. Stickman IV, a Donald Trump appointee, blocked Pennsylvania’s COVID-19 restrictions by relying on a combination of conservative dissents, bad precedent, and his own scientific acumen. Stickman appears to be on a mission to forcibly reopen the state—prematurely, in the view of its elected governor—by any means necessary.
Nearly 8,000 Pennsylvania residents have died of COVID-19 so far. Gov. Tom Wolf, a Democrat, responded to the pandemic by imposing restrictions similar to other states’. Initially, Wolf closed “non-life sustaining businesses” and ordered residents to stay at home. Those orders are now suspended, but Wolf has maintained a ban on indoor gatherings of more than 25 people and outdoor gatherings of more than 250. A group of counties, Republican politicians, and business owners sued, alleging a violation of their constitutional rights. They had the good fortune of getting their case before Stickman, a 41-year-old former litigator and Republican politician himself.
In a 66-page ruling, Stickman sided with the plaintiffs, even though the Supreme Court has repeatedly rejected similar efforts to topple COVID-19 restrictions. In May, Chief Justice John Roberts expressed his skepticism that these rules are unconstitutional in light of 1905’s Jacobson v. Massachusetts. That decision permitted a mandatory vaccination program, allowing states to establish broad restrictions on individual liberty during disease outbreaks. It also directed the judiciary to defer to elected officials on urgent matters of public health.
But Stickman decided not to apply Jacobson’s deferential standard to Wolf’s order limiting public gatherings. Why? In short, because it’s old and he doesn’t like it. “Jacobson was decided over a century ago,” Stickman wrote. “Since that time, there has been substantial development of federal constitutional law in the area of civil liberties.” The judge seemed to take his cues from Justice Samuel Alito, who dissented when the Supreme Court refused to hear a challenge to Nevada’s restrictions on large gatherings in houses of worship. Alito asserted that Jacobson was too deferential, particularly when applied to religious worship. “The Court shares the concerns expressed by Justice Alito,” Stickman concluded, citing “the need for an independent judiciary to serve as a check on the exercise of emergency government power.”
This argument has one major flaw: Alito’s dissent is not the law. Jacobson is. It is up to the Supreme Court, not Stickman, to decide whether “the need for an independent judiciary” justifies judicial interference in public health crises. Yet Stickman plowed ahead, relying upon Alito’s dissent to strike down Pennsylvania’s limits on large gatherings. Applying heightened scrutiny—the opposite of what Jacobson commands—Stickman held that the limits violate the First Amendment because they “place substantially more burdens on gatherings than needed to achieve their own stated purpose.” In other words, the judge substituted his own scientific analysis for the governor’s experts.
But this performance was just a warmup for the heart of Stickman’s decision: a revival of Lochner v. New York, the much-loathed 1905 decision used today as shorthand for judicial overreach. In Lochner, the Supreme Court struck down a New York law that allowed workers in the state’s notorious dirty, unsafe bakeries to work no more than 10 hours a day and 60 hours a week. The majority relied upon the “liberty of contract” that is ostensibly guaranteed by the 14th Amendment’s due process clause. There is, in reality, no such right in the Constitution. But for 40 years, the Supreme Court relied upon this theory of “economic liberty” to invalidate progressive labor reforms, most notably minimum wage and maximum hour laws. The Lochner era ended with 1937’s West Coast Hotel v. Parrish, in which the Supreme Court disavowed judicial intrusion into labor laws like the minimum wage, stating flatly: “The Constitution does not speak of freedom of contract.”
Virtually all legal scholars today scorn Lochner as bad law, a cautionary tale about the perils of judicial activism. So does the chief justice. But not Stickman: He claimed that Lochner was merely “recalibrated and de-emphasized by the New Deal Supreme Court and later jurisprudence.” The Supreme Court may have disclaimed any reliance on Lochner. It may have repudiated the constitutional doctrine upon which it rests. But, Stickman wrote, the court has never “repudiated” it altogether. Thus, he applied Lochner as valid precedent, forbidding Pennsylvania from closing “non-life-sustaining” businesses because they unduly interfere with residents’ right “to pursue their chosen occupation.” (This decision won’t have any immediate effect, since Wolf already suspended business closures.)
Stickland is not the first conservative judge to favor conservative dissents over actual precedent. These judges increasingly rely on conservative dissents—most frequently those by Justices Clarence Thomas and Antonin Scalia—to guide their analysis in cases involving abortion, campaign finance, gun control, cruel and unusual punishment, voting rights, and other controversial issues. But lower courts cannot transubstantiate dissents into binding precedent through sheer force of repetition.
There may be reasonable, even compelling, criticisms of Wolf’s COVID-19 restrictions. But his orders do not present any particularly difficult legal questions. As Roberts explained in May, a democracy typically entrusts these difficult choices to the people’s elected representatives, not unelected judges desperate to draw praise from the far-right legal movement. There is little doubt that a federal appeals court, or SCOTUS itself, will soon reverse Stickman. But the judge has already made his point: We may think we govern ourselves, but it only takes one radical judge to throw an entire state’s pandemic plan out the window.
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