During the course of this pandemic, the Supreme Court has been generally reluctant to enjoin public health measures adopted by local and state actors, whether they relate to public gatherings, voting, or jails. Yet in its recent Roman Catholic Diocese of Brooklyn v. Cuomo opinion, the court voted 5–4 to enjoin enforcement of a New York rule concerning occupancy limits for religious services. Now the court has again stepped in, with two more unsigned orders, to strike down Colorado and New Jersey restrictions.
The rulings highlight a paradox: The justices have granted wide leeway to states that fail to enact measures that adequately protect the rights of people in custody, who have no way to escape an epidemic of death in jails and prisons. Yet at the same time, the justices have equally aggressively overturned state actions in the name of protecting the rights of religious groups seeking exemptions from state public health regulation to hold in-person services. Basically, this court is activist when it comes to loosening COVID-19 restrictions in the name of protecting religious liberty, but refuses to act when other basic constitutional interests are at stake.
When religious groups sought emergency relief in New York, the court stepped in last month to conclude that restrictions on services were so “very severe” that they ran afoul of the First Amendment’s religious liberty protections. The governor’s executive order in New York had capped services at 10 or 25 persons, depending on the area. The court emphasized that “even in a pandemic, the Constitution cannot be put away and forgotten.” The court held that more narrowly tailored regulations could suffice—not finding evidence that these congregations had contributed to the spread of COVID. Indeed, the justices took the matter even though the regulations in questions had already been relaxed to permit far larger religious gatherings.
On Tuesday, the court did the same in its Colorado ruling; The state had already relaxed its restrictions on religious gatherings to comply with the court’s New York ruling, yet the court decided to act again. And in yet another unsigned order, the court did the same regarding a New Jersey challenge to attendance and to a mask mandate.
Compare how the court upheld state action—or inaction—and undermined the rights of people detained in our nation’s jails, prisons, and detention centers. Nowhere has the virus posed a more deadly threat than for people confined. To date, more than 200,000 persons in custody in jails and prisons have been infected and about 1,500 persons in custody and corrections officers have died. In response, jails and prisons have often failed to adopt minimal precautions, like reducing crowding, making clean masks available, or conducting systematic testing. Lawyers quickly filed litigation around the country seeking to release vulnerable people and require facilities to follow minimal public health recommendations.
The Constitution has something profound to say about the prospect that a person could be held in custody, in overcrowded and unsanitary conditions, and unable to socially distance or avoid deadly health risk. In its momentous 1976 ruling in Estelle v. Gamble, the Supreme Court held that prisoners have a right to “reasonably adequate” health care under the Eighth Amendment. Regarding “exposure of inmates to a serious, communicable disease,” the Supreme Court emphasized in Helling v. McKinney in 1993 that this standard applies; the court emphasized that: “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”
More recently, in Brown v. Plata, the landmark 2011 ruling on overcrowding in California’s prisons, the Supreme Court emphasized that a person in custody “may suffer or die if not provided adequate medical care.” Thus, to deprive prisoners of adequate medical care, “is incompatible with the concept of human dignity and has no place in civilized society.”
What happened to this decades-old body of constitutional law during the pandemic? It was undermined, not always by federal judges in the lower courts, who were confronted with a horrifying crisis, but certainly by the Supreme Court.
Take, for example, the Ahlman case, a lawsuit filed in the spring as COVID-19 cases multiplied in the Orange County, California, jail, which houses 3,000 individuals, and which soon experienced more than 300 cases. The district judge found that the risk was “undeniable high” and the jail’s response was “piecemeal and inadequate.” Nevertheless, the Supreme Court halted the injunction in an unwritten order. In dissent, Justice Sonia Sotomayor called the intervention unsupported, “leaving to its own devices a jail that has misrepresented its actions … and failed to safeguard the health of the inmates in its care.” Since then, the jail has had another outbreak, and a state judge has stepped in, finally.
Again, the Supreme Court intervened to prevent constitutional remedies when in ACLU v. FCI Elkton (Ohio), a federal judge recognized elderly inmates should be moved into home confinement from a prison with widespread infections, with the court again blocking the order. Hundreds of prisoners had been infected and nine had died in that prison system.
This intervention from the Supreme Court sent a message to lower courts. In the Elkton case, the appeals court then reversed the order to move persons into home confinement. Similarly, federal appeals courts in the 3rd, 5th, 6th, 7th, 9th, and 11th Circuits have delayed or limited relief.
Most recently, last month, the Supreme Court refused to lift the hold an appellate court ordered on relief to Texas inmates in the Grimes County geriatric prison. Sotomayor again dissented, noting that “the inmates can do nothing but wait for the virus to take its toll.” Twenty have died already. The court had earlier turned down a request from prisoners in May.
Some local and state officials have extended remedies to persons in jails and prisons. State courts have ordered modest release. New Jersey enacted legislation to permit more than 2,000 early prisoner releases. However, the Supreme Court’s role in putting the brakes on judge’s orders designed to protect the lives of prisoners should deeply concern us all. Timing was crucial as the pandemic spread and these appellate rulings put a halt to urgent remedies.
To be sure, one consistent view could have been that during an emergency, the justices would seek to avoid constitutional questions, where possible, in deference to public health decisions by local actors during a pandemic. Chief Justice John Roberts expressed that view in a concurring opinion regarding the need not to second-guess California restrictions this summer. Until the most recent trio of rulings on religious gatherings, that seemed like the most principled explanation for the court’s role. Now, with so many lives at stake, however, the court has placed itself in a more conflicted and complicit role, by intervening in favor of religious rights but halting constitutional remedies in cases involving prisoner’s rights.
Our jails and prisons quickly became and still remain epicenters for transmission of the pandemic. We should not forget the role that the Supreme Court played in keeping federal courts largely at the sidelines. We urgently need public health regulations to prevent such humanitarian crises in custody, and all the more so because, unlike for religious assemblies, for persons held in custody, the Constitution has been “put away and forgotten.”