On July 31, the federal government’s eviction moratorium expired, potentially forcing millions of Americans out of their homes during yet another COVID surge. In the days before the eviction cliff, House Democrats attempted to extend the moratorium, but Republicans easily blocked their measure. Democratic lawmakers then spent the weekend arguing over who was to blame for the looming catastrophe.
Curiously, most Democrats chose not to focus on the primary culprit: the Supreme Court. In late June, five conservative justices signaled that they would not let the White House extend the eviction ban beyond July 31 absent further congressional authorization. These Republican-appointed justices set the terms of the debate, yet were largely absent from Democrats’ blame game. As a result, most vulnerable Americans will likely not understand they face homelessness in a pandemic because of SCOTUS. This strange dynamic is symptomatic of a deeper pathology in contemporary American politics: Democrats appear incapable of explaining how the Supreme Court stymies their own agenda—and the resulting confusion shields the court from criticism, consequences, and accountability when its decisions wreak havoc.
When House Speaker Nancy Pelosi urged Biden to extend the eviction moratorium on his own, she framed the issue as a matter of morality. But the president’s inaction was almost certainly a legal calculation. To understand his hesitation, it’s key to remember that the recently expired moratorium was not the same policy that had been in effect since the start of the pandemic. Congress passed its first eviction ban in March 2020, explicitly prohibiting landlords from kicking out tenants who could not afford rent because of the pandemic. After this provision expired that August, Donald Trump issued an executive order asking the CDC to take action. The CDC responded in September with its own eviction moratorium set to run through the end of 2020. It was rooted in a federal law that allows the agency “to make and enforce such regulations” that are “necessary to prevent” the “spread of communicable diseases” between states. In December, Congress passed legislation that explicitly extended the CDC’s moratorium through Jan. 31, 2021. The agency then extended the ban several more times.
While the CDC kept the moratorium in place, a group of landlords sued to block it, claiming it exceeded the agency’s authority. On May 5, U.S. District Judge Dabney Friedrich sided with the plaintiffs against the ban but stayed her order. One month later, the U.S. Court of Appeals for the District of Columbia Circuit court refused to block the ban. The plaintiffs then appealed to SCOTUS, which came within an inch of ending the moratorium. Five justices—Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—believed it violated the law. But Kavanaugh, who cast the decisive fifth vote, wrote separately to explain that although he believed the CDC had “exceeded its existing statutory authority,” he would not invalidate the ban. Instead, weighing the “balance of equities,” he would allow it to remain for “a few weeks.”
“In my view,” the justice declared, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Kavanaugh’s analysis is dubious at best. (Maybe that’s why Chief Justice John Roberts didn’t join it, instead quietly voting to keep the moratorium in place.) Congress already gave the CDC expansive powers to fight the “spread of communicable diseases” between states. The agency acted pursuant to this law when it determined that mass evictions would force many Americans to live unhoused or crammed together in close quarters, transmitting the virus more widely. Crucially, when Congress chose to extend the moratorium, it simply passed a law extending the CDC’s own ban. By doing so, lawmakers chose “to embrace” the agency’s action and “expressly recognized” that it had the authority to issue the ban, in the words of the D.C. Circuit. It would not make a lick of sense for Congress to extend the CDC’s moratorium if it did not believe the CDC had authority to issue it.
Admittedly, it is difficult to convey this legal conflict to the public. But for the most part, Democrats didn’t even try. In a belated statement, the White House explained that it could not extend the moratorium by itself because of the Supreme Court. It did so in the most roundabout language imaginable, devoting just a single sentence to the root of the problem.
This refusal to criticize the court is nothing new for Democrats. While Trump spent four years bashing an array of judges, Democratic presidents take pains to avoid overtly condemning the federal judiciary. Their hesitation to take on the courts has created a political hazard: Democratic voters do not appear to understand that the Supreme Court routinely quashes their preferred policies. According to a new Gallup poll, 51 percent of Democrats approve of SCOTUS—the same approval rating that Republicans give the institution. Even though the court boasts a 6–3 conservative majority, more than half of Democrats think it’s doing a good job.
It’s easy to see why. In their fight for voting rights, Democrats rarely mention that many states can only pass new voter suppression laws because the Supreme Court gutted the Voting Rights Act in 2013. In their quest for greater health insurance coverage, they almost never mention that the Supreme Court kneecapped Obamacare’s Medicaid expansion, allowing states to opt out. Time and again, SCOTUS has hobbled Democratic priorities, making it harder to vote and access health care. The crackdown on racial minorities’ access to the ballot in Georgia and the sky-high rates of uninsured Americans in Texas are the predictable consequences of judicial interference with democratically enacted legislation. But unless you are a lawyer or way too online, you might assume that Democrats just can’t get the job down.
Why don’t more politicians highlight the court’s role in paring back progressive policies? Perhaps because, if they did, voters might demand that they do something about it. Most Democratic lawmakers still treat court reform like a taboo topic, and few have come out for expansion of the Supreme Court. If cautious, moderate Democrats blame SCOTUS for blowing up their plans, voters might ask them for their plan to fix SCOTUS. If they have no plan, voters might rightly see them as shirking responsibility. It is easier to act as if some ineffable force is stopping Democrats from enacting their platform than it is to confront the court.
So here we are again, watching politicians fight over an obstacle of the Supreme Court’s creation while largely pretending that it materialized out of thin air. The lines of accountability are hopelessly muddled, while the real culprits—Kavanaugh and his four colleagues—are spared from any consequence. If Democrats do not confront the courts, they will come to share the blame for the judiciary’s destruction of their own policies.