It is an indictment of our current Supreme Court that Thursday night’s 6–3 decision ending the CDC’s eviction moratorium was probably the best-case scenario. That’s because the conservative supermajority did not impose any constitutional limitations on the federal government’s authority to pause evictions. Instead, the Republican-appointed justices merely gutted the Public Health Service Act, a 1944 statute that provided the basis for the CDC’s now-blocked policy. This outcome is as good a victory—or, rather, as narrow a loss—as Joe Biden could have hoped for at this court. It is still a startling abuse of judicial power guided by less by law than by arrogance, privilege, and outrage.
The CDC’s eviction moratorium was not Biden’s idea. Donald Trump ordered the agency to devise such a policy last August, and it issued its ban the following month. For authority, the agency cited the Public Health Service Act, which allows the CDC “to make and enforce” regulations that “are necessary to prevent” the spread of “communicable diseases” between states. Some commentators—and, now, the Supreme Court—argued that this law could not permit a nationwide halt on evictions. But Congress itself disagreed with this cramped reading: In late 2020, rather than pass a whole new moratorium, Congress explicitly extended the CDC’s own policy, evidently approving of the agency’s powers under the statute. Since then, the CDC has extended the ban several more times.
On Thursday, the six conservative justices pulled the plug on the policy. Their unsigned opinion bristles with irritation at the federal government for renewing the moratorium after five justices signaled their belief that it was illegal in June. “It is a stretch,” the majority wrote, to maintain that the Public Health Service Act “gives the CDC authority” to pause evictions. It complained that the government’s reading of the act would give the CDC an “unprecedented” and “breathtaking amount of authority” with no real limits, musing:
Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?
As for the millions of tenants who may now be forced out of their homes, the Supreme Court evinced no concern whatsoever. Instead, it empathized with the “millions of landlords across the country” who faced the “irreparable harm” of missed rent payments “with no guarantee of eventual recovery.” The majority nearly shed tears over the government’s infringement upon these landlords’ “right to exclude” while ignoring the indigent tenants who now face homelessness in the midst of the Delta wave.
About that wave: You can scan the majority’s opinion in vain for any recognition that COVID is currently surging in the vast majority of the country. This crisis is one of many pertinent facts that are curiously omitted from the opinion of the court. The majority does not mention the fact that tenants remain obligated to pay as much rent as possible, or that Congress will reimburse landlords. It does not cite the CDC’s belief that mass evictions will exacerbate the surge, insisting—against scientific evidence—that evictions would only “indirectly” affect interstate infections. And it disregards Congress’ recent approval of the CDC’s authority to pause evictions under the Public Health Service Act.
For all this information, the reader must turn to Justice Stephen Breyer’s dissent, joined by Justice Sonia Sotomayor and Elena Kagan. It’s a remarkable contrast. Where the majority relied on heated rhetoric, Breyer deployed facts, figures, and dispassionate analysis. He even inserted a chart to illustrate what the majority disregarded: We are facing a devastating COVID surge that is, in some ways, comparable to last winter’s deadly peak.
It also fell on Breyer to point out that his conservative colleagues were, once again, abusing the shadow docket—those emergency orders issued without full briefing or oral argument. SCOTUS cannot intervene at this early stage in litigation unless it is “demonstrably” clear that the lower court misapplied “accepted standards.” This standard should limit premature intervention to the rarest, most extreme open-and-shut cases. But the federal appeals courts split on the legality of the moratorium, illustrating the reasonable judges could disagree on the question. Almost by definition, a legal dispute that divided the lower courts cannot have a “demonstrably” right and wrong answer. Nonetheless, the conservative justices broke the court’s own rules once again to rush out a decision well before they had any license to.
The majority seemed to believe it could overcome this hurdle by turning up the volume. It sounded appalled, almost disgusted, by the Biden administration’s claim to authority. And it is this indignation, rather than reasoned judgment, that guides its decision.
As Matthew Segal, legal director of the Massachusetts ACLU, wrote on Friday, the opinion hinges not on any legal text, but “on what feels outrageous to the members of the court.” The incensed list of hypotheticals—free grocery delivery? free computers?—is a dead giveaway. Why, exactly, are these examples so absurd? The court routinely upholds broad grants of presidential power to enforce policies favored by the conservative majority. Just this week, for instance, it required the president to keep refugees on the Mexican side of the border under a sweeping law that the conservatives have never griped about. What’s more absurd: A temporary policy mandating free grocery delivery for vulnerable people in a pandemic, or an indefinite policy rejecting the United States’ treaty obligations to shelter asylum-seekers?
Moreover, why is the power asserted by the CDC “breathtaking,” as the majority put it? The Supreme Court did not use that word when it let Trump exploit a broad law to ban millions of Muslims from entering the country., or construct a border wall, or impose a wealth test on immigrants. The list goes on.
The point is this: Thursday’s decision was guided by six well-off lawyers’ subjective sense of how much authority the president should have in a pandemic. Who needs careful legal analysis when the court can just shrug that the president’s reading of the law is “a stretch”? Who needs pesky facts about mass infections when the sacred rights of private property are on the line? Who needs a balance of the interests when America’s landlords have already won the hearts of the conservative justices? The majority opinion is pure feelingsball.
And yet, it still was not as bad as it could have been. The majority opinion ended by stating that Congress could authorize a new eviction moratorium if it wanted—an acknowledgement that, at a minimum, the Constitution does not prevent such a policy. It did not completely hobble Congress’ ability to give broad guidance and substantial discretion to federal agencies in times of crisis. Instead, the court rebuked Biden for daring to renew the moratorium after it put him on notice that it did not approve. If this outcome exacerbates the pandemic among newly evicted Americans, they should not expect any empathy from the Supreme Court.
