Bloomberg Law
Aug. 3, 2020, 8:50 AM

Roberts Holds Line on Judicial Second-Guessing of Covid Orders

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The U.S. Supreme Court hasn’t shown much willingness during the Covid pandemic to second-guess emergency orders issued by public officials.

In approximately two dozen emergency requests received by the justices challenging federal, state, or local orders, Bloomberg Law found that the conservative-majority court has favored Democratic and Republican-led governments in all of them, save a procedural defeat that the Trump administration eventually won.

The justices have across the board upheld rules aimed at protecting public health during the pandemic, even if the rules limit freedoms. They’ve sustained restrictions on in-person religious services, turned away groups complaining about business closures, and undone attempts to relax requirements for ballot initiatives to account for social distancing difficulties.

Decisions in cases arising during extraordinary times reflects the cautious ideology of Chief Justice John Roberts. Some broke 5-4 along traditional ideological lines, with conservatives and liberals in dissent. But only Roberts was in the majority in all of them.

Given that emergency orders are the purview of the political branches, Roberts’ concern for separation of powers means he’ll “be generally deferential to them,” said Charles Thompson, the executive director and general counsel of the International Municipal Lawyers Association.

Exceedingly High Bar

Most requests asked the court to halt emergency measures by either issuing injunctions or lifting ones issued by a lower court.

In South Bay United Pentecostal Church v. Newsom, the justices were asked to stop California’s limitations on in-person religious services. In a handful of cases, starting off with Barr v. Lee, the Trump administration asked the justices to lift injunctions delaying executions for federal inmates. And in the first Covid-related order, Republican National Committee v. Democratic National Committee, the justices were asked to undo lower court orders extending the deadline in Wisconsin to vote by mail in the state’s spring election.

In each, the court emphasized the “exceedingly high bar” against it stepping in.

For instance, the justices denied a bid by victim family members to stay the first federal execution in 17 years over their concerns about traveling during the pandemic to attend it in person.

“The plaintiffs in this case have not made the showing required to justify last-minute intervention by a Federal Court,” the justices said in an unsigned opinion.

Cases like these aren’t necessarily being decided on the merits, said Mark Miller, an attorney with libertarian nonprofit law firm Pacific Legal Foundation.

He pointed to the Wisconsin case in which the justices partly blocked a trial judge’s ruling on the absentee ballots.

“The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate,” the Supreme Court said in that case. “That point cannot be stressed enough.”

Roberts seemed to be particularly worried about the judiciary hamstringing government officials charged with protecting public health and safety, Miller said, adding that courts aren’t the proper branch to do that.

To underscore this, Roberts wrote in the challenge to California’s limits on in-person religious services that the “politically accountable officials” should “not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Judicial Overreach

While the Supreme Court has been reluctant to reject Covid orders, lower courts have been more willing to take a closer look, Miller said.

“Where a court doubts the existence of or extent of the emergency,” the “less deferential the courts will be,” Thompon said. “Similarly, where the action taken to address the emergency seem to test logic, then the courts may find those actions improper.”

In the Wisconsin case, the district judge questioned the state’s decision to continue with its spring election for thousands of state and local positions in the middle of a pandemic, noting the court’s duty to ensure that citizens’ right to vote wasn’t being impinged. “That is what the court attempts to do.”

But the Supreme Court saw it differently.

“By changing the election rules so close to the election date” the district court ran afoul of Supreme Court precedent prohibiting courts from making eleventh-hour modifications that could confuse voters, the high court’s unsigned opinion said.

It’s not the only time the court has stepped in to claw back what it sees as overreach.

The justices lifted lower court injunctions in the federal execution cases. And it blocked a lower court order requiring that hundreds of federal inmates be moved from an Ohio prison that had become a hotspot for the coronavirus.

That’s a big deal considering that the court will almost certainly be asked to weigh in on election measures ahead of the 2020 vote.

On July 30, the court reinstated Idaho’s rules for ballot initiatives, undoing a lower court ruling that had relaxed those requirements in light of the difficulty of collecting signatures during the pandemic.

Although the court’s action is extraordinary, it’s necessary “in light of the transformative and intrusive nature of this preliminary injunction,” Roberts wrote in a concurring opinion. “Right now, the preliminary injunction disables Idaho from vindicating its sovereign interest in the enforcement of initiative requirements that are likely consistent with the First Amendment.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at