Jurisprudence

Don’t Be Fooled by Amy Coney Barrett’s Performance of Moderation

Two new COVID-related cases show the court lurching ever rightward.

Amy Coney Barrett speaks at the White House after her confirmation to the Supreme Court.
Justice Amy Coney Barrett at the White House. NICHOLAS KAMM/Getty Images

On Thursday evening, the Supreme Court issued two orders in COVID-related cases that together exemplify the conservative majority’s strategic use of the shadow docket—unsigned emergency orders issued outside of the court’s normal procedures and without oral argument—to drag the law rightward under the guise of moderation. First, Justice Amy Coney Barrett turned away a constitutional challenge to Indiana University’s vaccine mandate without explanation, and without formally referring the case to the full court. Second, by a 6–3 vote, the justices blocked a portion of New York’s eviction moratorium as a violation of due process with only a single line of legal analysis.

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A casual observer might reasonably assume that, with these two orders, the court acted with Solomonic centrism, upholding one very reasonable COVID regulation while swatting down a different, dubious one. In reality, though, the conservative majority’s assault on New York’s law marks a radical shift in the law reflecting bottomless concern for the rights of landlords and callous indifference toward indigent tenants. It only looks sensible in combination with Barrett’s decision to permit the vaccine mandate—yet there was never any real chance that the justices would prevent Indiana University from forcing students to get the shot. By issuing the two orders almost simultaneously, the court got good press upfront that drowned out any backlash to its disturbing ruling against New York. The court giveth and the court taketh away, but the court tacks ever to the right in so doing.

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Despite the attention it received, the Indiana University lawsuit was always a frivolous case. The students contesting compulsory vaccination put forth daffy arguments with no basis in either precedent or science. There’s simply no case law to support the claim that anyone has a fundamental right to refuse vaccination as a condition of education at a public school, while there is more than a century of precedent allowing states to demand student vaccination—both during normal times and in the midst of a pandemic. A three-judge appellate panel of the 7th U.S. Circuit Court of Appeals, consisting of two Donald Trump appointees and a Ronald Reagan appointee, had upheld the vaccine mandate under longstanding precedent. Moreover, the plaintiffs proffered deceptive scientific theories, pretending college-aged individuals face virtually no risk of serious illness or death. (They largely ignored new data demonstrating that the Delta variant heightens the risk of hospitalization for young people.)

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The weakness of the Indiana suit was only amplified by a bizarre amicus brief filed on behalf of the plaintiffs, by a group called Physicians for Informed Consent, claiming, among other things that “there is no evidence that any of the currently available EUA COVID- 19 vaccines prevent the spread of SARS-CoV-2 or COVID-19, and in fact there is evidence that the spread of SARS-CoV-2 occurs in spite of vaccination. Therefore, there is no scientific justification to segregate vaccinated and unvaccinated people.” The brief goes on to note that avoiding such segregation is “particularly important in light of super precedent Brown v. Board prohibiting separate but equal schooling.”

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To be sure, Barrett did the right thing by batting the Indiana suit away and even by avoiding sending it to her colleagues before so doing. But to confuse that act with centrism or moderation is an error: The fact is that the very existence of the shadow docket and the burgeoning legal belief that everything is an extreme freedom-related emergency, requiring instant off-the-books resolution at the Supreme Court, has invited this sort of frivolous emergency petition. The current court built this climate of exigency and sloppy petitions. Refusing to entertain the zaniest of them is hardly a win for legal process.

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A truly moderate Supreme Court would have disposed of the challenge to New York’s eviction moratorium almost as quickly as Barrett threw out the vaccine case. Like the federal government, the New York legislature implemented a moratorium on evictions, which public health experts say will slow the spread of COVID. To qualify for protection, tenants must sign a declaration stating that they are experiencing financial hardship. A provision of the law prohibits administrative or judicial review of this hardship declaration until the moratorium expires on Aug. 31. A group of landlords filed a federal lawsuit arguing that this section violates their due process rights. They demanded an opportunity to contest their tenants’ claims of hardship before a judge.

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In June, Judge Gary R. Brown, a Donald Trump nominee, easily disposed of their suit. For decades, Brown wrote, the Supreme Court has granted states immense flexibility to regulate property, including housing, without providing property owners an immediate hearing. That flexibility is even more expansive when the state legislature has enacted a statutory scheme laying out procedural requirements for the deprivation of property. “When the legislature passes a law which affects a general class of persons,” Brown explained, quoting precedent, “those persons have all received procedural due process—the legislative process.” The fact that the plaintiffs “dislike of the procedures adopted,” the judge continued, “does not implicate procedural due process concerns.” After the plaintiffs appealed, a unanimous panel of the 2nd U.S. Circuit Court of Appeals refused to issue their requested relief, an emergency injunction. That decision seemed inevitable: Whatever the merits of the precedents that Brown cited, after all, they are the law.

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Or at least they were until Thursday night, when, in another dashed-off, unsigned order, the Supreme Court issued an injunction against the New York law. It provided a single sentence of analysis, declaring, of the self-certification provision: “This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.” Apparently, this lone truism resolved the entire case. Under the court’s own rules, SCOTUS may intervene at this early stage only under “the most critical and exigent circumstances,” and when the rights at issue are “indisputably clear.” As the lower courts’ decisions demonstrate, the rights at issue here were nowhere near “indisputably clear,” and the circumstances were the opposite of exigent: New York’s moratorium is set to expire in just three weeks. The state is also in the process of disbursing funds to help struggling landlords.

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Moreover, as Justice Stephen Breyer noted in a dissent joined by Elena Kagan and Sonia Sotomayor, the court is supposed to balance the competing hardships in a case like this. Yet the majority focused exclusively on the hardships of landlords, completely ignoring that of impoverished tenants who may soon be forced out of their homes. As Breyer noted, quoting Chief Justice John Roberts in a COVID case from last year, “The New York Legislature is responsible for responding to a grave and unpredictable public health crisis. It must combat the spread of a virulent disease, mitigate the financial suffering caused by business closures, and minimize the number of unnecessary evictions. The legislature does not enjoy unlimited discretion in formulating that response, but in this case, I would not second-guess politically accountable officials’ determination of how best to ‘guard and protect’ the people of New York.” Evidently a year on, the second-guessing may begin.

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If you are scoring this at home, it’s easy to say that COVID public health measures won one and lost one at the Supreme Court on Thursday. But that elides what really happened: The court took a small step toward sanity then a giant leap into unsettling settled law, with yet another unreasoned, unsigned decision. According to University of Texas School of Law professor and Slate contributor Steve Vladeck, this means there were 22 shadow docket decisions this term alone from which all three liberals publicly dissented. (Many court commentators like to leave out these 6–3 shadow docket decisions when compiling statistics, creating a misleading impression of moderation.) And while the court issued just four emergency injunctions during the Roberts court’s first 15 terms, it has now issued a whopping seven in the ten months since Barrett joined the bench.

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The court isn’t just deciding more and more cases on an emergency basis. It is also deciding what constitutes an emergency. Exigent circumstances do not seem to include impending executions, prison conditions, or the right to vote. They do seemingly include the need to attend church, study the Bible, and to collect rent in a pandemic. That these cases are then resolved without any legal reasoning, or with empty sloganeering about due process, is yet more troubling. Any way you slice it, the Supreme Court is hastily cobbling together a new doctrine of emergency law in a pandemic. And the only coherent principle that has emerged from the filaments of unsigned orders and opinions is that your rights and freedoms are only exigent, when they touch the hearts of the conservative majority.

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