Fabick applies only to Wisconsin. But the court’s refusal to consider the health consequences of its decision reflects a broader trend among conservative jurists, one that may have dire consequences for the nation’s health.
The Wisconsin court asserted that it “does not referee partisan battles; our duty is to ensure that each branch of government respects the constitutional limits of its authority.” That defense — with its clear invocation of U.S. Supreme Court Chief Justice John G. Roberts Jr. likening judging to “calling balls and strikes” — suggests that there is a clear line between law and health policy. It also masks a contradiction: Even as courts claim that they cannot consider the health implications of their decisions, they are making health policy.
The notion that judges cannot consider the impact of their rulings on public health is, no doubt, seductive; it offers the comforting illusion that judges can and must be neutral umpires. But judges have long considered the protection of public health as well within their lane. In 1883, for example, the Wisconsin Supreme Court in Donnelly v. Decker rejected a constitutional challenge to state regulations of private property by explaining that the regulations “rest upon the maxim, salus populi suprema lex”: The health of the public is the highest law. To the Donnelly court, safeguarding health was itself a part — if not the highest part — of the law. The U.S. Supreme Court echoed this view a few years later in upholding a law in Cambridge, Mass., requiring vaccination for smallpox. Its ruling explained that the protection of the public’s health was one of the goals that lay beneath the formation of the social compact.
This view helps explain many aspects of American law. It explains why states have long been able to quarantine people and block interstate commerce to prevent the spread of contagious diseases. It also clarifies why courts recognize unreasonable actions that harm health as legal wrongs, and why our law forbids property owners from using their property in ways that injure others. It is also why, until the coronavirus pandemic, courts almost always granted substantial deference to public health officials during public health emergencies.
In the early days of the pandemic, most courts followed that tradition. They recognized the threat posed by the pandemic and gave governors the benefit of the doubt when reviewing orders designed to slow transmission of the coronavirus. Courts didn’t overlook clear violations of legal rights, but they did steer clear of questionable challenges to public health laws, and in reviewing claims, deferred to the reasonable judgments of health officials.
In May, when the Republican legislature challenged pandemic-related orders issued by the acting secretary of health, the Wisconsin Supreme Court took a different approach. The majority found that the secretary-designee lacked authority to issue those orders, and, oddly, quoted a Trump Justice Department filing in a case in a different state: “There is no pandemic exception … to the fundamental liberties the Constitution safeguards.” It was a telling statement in a case involving no fundamental constitutional rights, signaling that Wisconsin’s high court would not consider the impact of its decision on human life.
The U.S. Supreme Court now seems to share that view, as demonstrated in its recent decisions blocking several state public health orders that apply to religious worship. On Friday, the court by a 5-4 vote struck a California law limiting religious and secular gatherings in homes, ruling that it violated the Free Exercise clause. The court’s brief opinion gave no deference to the state’s public health arguments. To the majority, the impact of their rulings on public health seems to be irrelevant. In Washington, D.C., as in Wisconsin, conservative justices feign powerlessness even while they exercise power.
There is one way, however, in which these conservative justices are correct: The delineation of health policy does fall, in the first instance, to the elected branches. That is why it is so troubling when courts undercut health officials while preaching their own inability to make health policy. It is also why the failure of many public officials to act to protect the public’s health is so disturbing.
In a healthy democracy, where political polarization does not trump the public’s health and safety, the Wisconsin legislature might respond to the court’s decision in Fabick by granting the governor explicit authority to issue the mandate. That is unlikely to happen — not because masks won’t save lives, but because they have become partisan symbols. And for many elected officials, and even many judges, partisanship, rather than salus populi, seems to be the supreme law.