In the months since coronavirus began sweeping the U.S., there’s been a string of lawsuits by individuals and businesses challenging the authority of government officials to restrict commercial activity and individual movement—or “lockdowns.”
Even as lockdowns come and go, these cases illustrate both the peril and promise of litigation as a means of defining the limits of emergency public health powers and underscore why there is still an important role for the judiciary in adjudicating these claims.
The recent ruling of the Wisconsin Supreme Court is a prime example. In a closely divided decision striking down the state’s shelter-in-place order, the court took 161 pages to explain its conclusion about a particular point of administrative law and separation of powers. The court, comprised of judges elected through partisan statewide elections, voted along discernible ideological lines. The rhetoric in the majority, dissenting, and (especially) concurring opinions was overheated and unnecessarily extravagant.
Unsettlingly, the court reached out to decide constitutional issues not squarely presented to the court or even briefed by the parties. This turbocharged the politicization of measures by Wisconsin’s governor and public health officials and we can only wonder whether it resulted in a judgment, which notably took effect immediately, that was seen by the public as a sort of “gotcha” and therefore set loose so many folks to descend upon Wisconsin bars within hours of the decision.
Ideological Battle Lines
In the federal courts, also, there have already been some important divisions animate in cases challenging governors’ Covid-19 orders, especially in the areas of religious exemptions and abortion. Where the coronavirus presents us with a common enemy that respects no red state/blue state boundaries, it is especially disheartening to see some jurists readily hewing to the usual ideological battle lines.
To be fair, hard cases make bad law, as Oliver Wendell Holmes once warned. What makes so many Covid-19 cases hard is the reality that these matters emerge from the intense, urgent efforts of government officials confronting a novel virus with limited information, dire projections, and tools which are simultaneously blunt and inadequate.
Moreover, many of the statutes involved have rarely been used in the last century, let alone subject to intense judicial scrutiny. Under ordinary circumstances, courts may well be reluctant to second guess the judgments of governors or legislatures—but as the crisis endures, and broad measures potentially implicate a range of civil liberties and constitutional rights, hard cases will continue to arise.
Evidence-Based Analysis, Good Science
One essential way to improve the litigation over lockdowns is to recognize the value of evidence-based analysis and good science where it is available.
This is one of the lessons of the Supreme Court’s seminal Jacobson v. Massachusetts decision in 1905, a case involving a mandatory vaccination in order to help ameliorate a growing public health crisis.
In declaring that civil liberties must be balanced against the imperative of a strong state police power, the Court counseled judicial humility, writing: “It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain.”
Jacobson signals that courts should be reticent to second-guess governmental action because the factual and scientific evidence will typically be possessed by state public health officials and only indirectly available to the courts. When in doubt, lawyers and courts should rely upon data and medical expertise rather than on bromides and speculation.
More broadly, it is critical that courts remain open to soberly adjudicate claims involving coronavirus, which can come from both the left and right sides of the political spectrum. Last week’s decision from Wisconsin was seen as a triumph of more conservative views over more liberal ones, but before that, there were claims about how the “lockdown” of certain entities impacted the right to abortion or to bear arms.
Next week’s legal challenge could come from an entirely different vantage: for example, about the racially disparate impact of social distancing summons or the privacy implications of digital contact tracing. Partisanship is not confined to one corner of the political spectrum.
Federalism Is a Factor
Finally, federalism is a factor in the litigation, for better and for worse. On the one hand, there will be uneven judicial rulings in adjoining states, meaning that workers on one side of the border may have to go back to work as their neighbors continue to shelter in place—and potentially exacerbating uncertainty for businesses.
On the other hand, the legal measures and techniques that were effective in one state could be highly pertinent to leaders of another. Perhaps a silver lining is that these comparisons could sometimes serve as the kinds of figurative “laboratories” of democratic experimentation which our unique scheme of federalism offers.
All told, preserving a role for measured judicial intervention amid a crisis like this requires guarding against the sort of tone-deaf partisanship illustrated by Wisconsin’s decision. Instead, we should look to sophisticated, evidence-based, and sincerely forged litigation as a significant, and perhaps even essential, part of public health efforts.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Daniel B. Rodriguez is Harold Washington Professor at Northwestern University Pritzker School of Law. From 2012-18, he served as dean of the law school.
JP Schnapper-Casteras is a Washington, D.C., lawyer with a practice focused on civil rights and technology issues. He previously served as special counsel for appellate and Supreme Court advocacy at the NAACP Legal Defense and Educational Fund.