Here are four things to know about the Supreme Court’s pandemic public health decisions.
This court has resisted some public health limits on religious gatherings
The modern conservative legal movement emphasizes the First Amendment’s protections for the free exercise of religion. Scholars including Ken Kersch, Amanda Hollis-Brusky, Joshua C. Wilson, Daniel Bennett and Ann Southworth, and influential advocates such as Robert P. George, have shown the movement’s commitment to fighting restrictions on religious practices. These legal circles helped bring Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel Alito, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett to the court.
The court’s most notable pandemic decisions reflect its Republican-appointed justices’ commitments to limiting restrictions on religion. In cases last term, the court examined challenges to public health restrictions on in-person religious services, designed to slow the spread of the coronavirus in California and New York. In these cases, the court decided that state regulations impermissibly burdened religious practices because they were more stringent than those placed on similar secular activities — despite states’ arguments that they were necessary to protect public health.
The court is skeptical about the ‘administrative state’
This court, like the modern conservative legal movement at large, views the “administrative state” skeptically. By administrative state they mean executive branch agencies staffed by expert professional bureaucrats who create and enforce rules and regulations, based on the authority Congress granted. Some scholars even deem the administrative state “unlawful.” Many agree that until the New Deal, federal courts resisted the executive branch’s growth.
But political scientists Keith E. Whittington and Jason Iuliano recently showed that, in fact, federal courts never seriously resisted executive agencies creating and implementing regulations and policies. Federal courts have generally agreed that Congress gave these agencies substantial policymaking authority. Legal historians show that the administrative state has been central to policymaking since the nation’s founding. Nonetheless, the court’s current conservative justices tend to question whether Congress appropriately granted federal agencies the powers they wield.
This led to the court’s recent ruling that the Centers for Disease Control and Prevention did not have the authority to extend an eviction moratorium, designed to slow the coronavirus’s spread. By a vote of 6 to 3, with Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan dissenting, the court ruled that agencies can only exercise powers that have significant economic or political consequences if Congress has clearly given them that specific authority — in this case to block evictions, rather than the general authority to prevent the spread of disease.
But the Supreme Court has mostly allowed pandemic restrictions and rules to go unreviewed
Aside from these high-profile rulings, though, the court has declined to hear many pandemic-related cases. In keeping with Supreme Court precedent and constitutional history, the Roberts court has largely deferred to federal, state and local policymakers as they make rules and regulations to combat the pandemic. Often, such judicial deference and restraint allows the president and Congress to handle military affairs and foreign policy as they wish. In this case, judicial deference means that the court generally refrains from questioning state and local officials’ public health responses.
For instance, the court recently declined to hear a challenge to Indiana University’s vaccination requirements, consistent with its decision in the 1905 case Jacobson v. Massachusetts, which upheld government power to impose vaccine mandates. The court also declined to hear challenges to state and local policymakers’ mask mandates, and similarly deferred to California and Texas prison officials attempts to balance the competing demands of incarceration and the public health need to keep inmates distant from one another. And though the court has ruled in favor of some efforts to overturn public health restrictions on religious practices, the court has also declined to hear such appeals when they have asked for broader religious exemptions.
In election law decisions — another area constitutionally left largely to state and local control — the court displayed its traditional deference. In appeals immediately before the 2020 election, Chief Justice Roberts guided the court to generally defer to state and local officials’ approaches to balancing election procedures with the pandemic’s public health needs.
The pandemic pushed the Supreme Court to change how it operates
The pandemic prompted the court to adopt two major procedural reforms.
First, the court stopped holding public oral arguments in person and instead held them by teleconference. For the first time in the court’s history, its audio arguments were publicly broadcast live — though the court still resists calls to provide video of its proceedings.
Second, given policymakers’ need to respond rapidly to the pandemic, the court increasingly used what is called its “shadow docket.” These are cases heard quickly via emergency appeals, and they generally do not go through the full standard process of rising through the federal courts, appeal, legal briefing, public oral argumentation, court deliberation, and judicial opinion-writing and publication.
The shadow docket has enabled the court to dispose of cases quickly during a crisis, including the cases discussed above about mandatory vaccinations, the eviction moratorium and religious gatherings. But many analysts note that this expedited system has real costs: less legal community participation via briefs and oral arguments; reduced public ability to politically advocate about a case; diminished internal judicial deliberation within the court; and similarly diminished explanation of court decisions in detailed, signed opinions.
How might future pandemic-related legal challenges fare at the court?
The Supreme Court will almost certainly keep receiving legal challenges to vaccine mandates and other pandemic public health measures. So far, the court’s record suggests that it will defer to other state, local and national policymakers on most public health measures, although it will probably pay attention to any restrictions on religious practices and any attempts by federal agencies to use broad powers.
Herschel Nachlis is research assistant professor of government and policy fellow in the Nelson A. Rockefeller Center for Public Policy and the Social Sciences at Dartmouth College.
Kyle Thomson is senior attorney at the American Medical Association and was previously associate chief counsel at the Food and Drug Administration.
Amy Park is a junior at Dartmouth College studying government and public policy.
Annika Begley is a senior at Dartmouth College studying government.