Like numerous judges across the country for the past year, some justices on the U.S. Supreme Court appear unable to put aside their political views and question the legality of lockdown orders. That’s apparent in last week’s late-night decision in the ongoing battle between California’s churches and California Gov. Gavin Newsom. The order arose after Newsom ignored the Supreme Court’s prior decision that found bans on indoor worshipping to violate the First Amendment.
Just one week after the Supreme Court issued that decision, Newsom’s government issued a regional “stay at home” order that again banned all indoor church services during a sacred holiday season, but let grocery stores and large retailers like Costco and Best Buy stay open inside at 25 percent capacity. The order showed a shocking disregard for the law, particularly during the Holy Season and especially for a governor that has demanded complete fealty to his orders.
California must have known that it would be hauled back before the Supreme Court, and the court made it pay. Justice Neil Gorsuch’s plurality opinion hammered that point, saying: “Recently, this Court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution …. Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.”
Judicial Opinions that Could Run at CNN
Of course, one may expect such defiance from California politicians, whose state voted nearly two to one for Joe Biden over Donald Trump, but it is much scarier to see it come from three Supreme Court justices—Elena Kagan, Sonia Sotomayor, and Stephen Breyer—who discarded all respect for stare decisis and essentially accused their colleagues of killing people.
Kagan’s dissent could have been pulled from the op-ed pages of The New York Times or CNN. It repeatedly insists that California’s ban on indoor church services was based on “science” and developed by “experts” who are acting in good faith and whose opinions must be followed, no matter what. Has she paid any attention to what’s been happening in California since last summer?
Nothing here is based on science. Government officials privately admit that. That’s why viral transmission rates are roughly the same in California as they are in Florida and Texas, where churches have been open indoors for months.
At this point, California officials don’t even purport to rely on science or data but on a generalized reticence about people from different households mixing together. Of course, as Gorsuch noted, despite that concern, people in California are allowed to do many things with others outside the house, like shopping, working in an office, and traveling. Newsom’s administration has just made a value judgment about what’s important enough to stay open. With churches, at least, the First Amendment prohibits that.
There Is No ‘Science’ or ‘Data’ Going On, Only Tyranny
Furthermore, if California had any science or data that requires closing churches—and that should be the question, whether this is necessary not just convenient—it would present it. It hasn’t.
The state hasn’t produced any data about any of the lockdown orders, with recent reports noting that Newsom’s “administration won’t disclose key information that will help determine when his latest stay-at-home order is lifted.” This lack of transparency has dogged Newsom for months, dating back to last summer when his public health officer, Sonia Angell, resigned without explanation. Even the Los Angeles Times said Newsom “isn’t playing straight” about her departure.
Sadly, Kagan’s dissent reflects a larger failure by the legal community during the COVID-19 pandemic: a failure to exercise any independent judgment or critical thought in the face of the greatest assault on civil liberties in modern American history.
Judges Hiding Instead of Doing Their Duty
Indeed, few judges have held governments accountable for the lockdown orders. Those who did have been mocked as right-wing Trump supporters (they aren’t). Meanwhile, organizations like the American Civil Liberties Union that are supposed to stand up for civil rights have deferred to public health bureaucrats on lockdowns while using the pandemic as an excuse to accomplish their political goals.
That may be the most chilling part of Kagan’s dissent in the South Bay Pentecostal case. It’s reasonable to defer to executive branch officials during an emergency. But that deference cannot last forever, and the amount of deference should depend on the nature of the government’s actions.
Lockdown orders that are unprecedented in American history and have prevented millions of people from working and educating their children for a year and counting are far different than the limited, temporary actions that courts have historically deferred to executive judgment on.
Some People Want to Stay Children Forever
Also, while political decisions should be left to the politically accountable branches, it is the judiciary’s responsibility to say what the law is and to prevent the government from acting in a way that is arbitrary and capricious. Democratic societies fall apart when judges stop exercising their independent judgment and shelter-in-place intellectually.
Aristotle and Plato both knew that. They also knew that the greatest threat to liberty comes in the form of a “protector,” as Plato explained in his “Republic,” a champion of the people who “they set over them and nurse into greatness.”
Plato viewed tyranny as the “fourth and worst disorder of a state” in part because tyrants lack reason, “the very faculty that is the instrument of judgment.” Aristotle also viewed “the rule of law” as “preferable to that of any individual” because the law is “reason unaffected by desire.”
Supreme Court Justice Louis Brandeis echoed those thoughts when he said, in Olmstead v. United States, that “[t]he greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” A lack of understanding— indeed, disinterest in understanding—has defined the COVID-19 pandemic. How else could one explain Justice Kagan’s comment that “judges do not know what scientists and public health experts do” and that she “cannot imagine that any of us delved into the scientific research on how COVID spreads, or studied the strategies for containing it”?
‘Science’ Doesn’t Suspend the Laws
Of course, judges are uniquely positioned to review this research and to determine if the government is acting rationally, in the most narrowly tailored way and within the confines of the Constitution. Judges do that all the time. Juries do too. Not wanting to do it is different than being incapable of it.
Justice Kagan, of all people, should know that. In a famous Harvard Law Review article, she dissected the development of administrative law during the 20th century, discussing, in particular, the efforts of Securities and Exchange Commission commissioner James Landis and Supreme Court Justice Stephen Breyer to create an administrative state of “experts” who would control policymaking for the federal government. According to Kagan:
At the heart of the critique lay a growing skepticism about the possibility of neutral or objective judgment in public administration. Whereas the questions of what and how to regulate seemed to Landis matters of fact and science, they appeared to his detractors, ever more numerous as time passed, to involve value choices and political judgment, thus throwing into question the legitimacy of bureaucratic power. The critique did not deny the importance of expert knowledge in helping to shape public policy decisions, by providing information or analyses relating to available regulatory strategies. But opponents of Landis’s theory did insist that much besides expertise necessarily permeated administrative choice and that assignment of these value-laden decisions to unelected administrative officials–possessing, along with expertise, political views, interest group affiliations, and bureaucratic interests–needed at the least to be subject to external control.
Lest there be any doubt about Kagan’s opinion, she made it clear: “The key point is that models of administration, like those of Landis or Breyer, relying on internal expertise provoke serious questions about the quality, no less than the legitimacy, of agency action.”
Those words seem a distant memory now. Let’s hope that, as the pandemic enters its second year, more judges stop politicizing the pandemic, start following the law and look critically at the lockdown orders, as Kagan once envisioned. Lockdowns are not sustainable.
And they will not evaporate with the vaccine rollout. The Wall Street Journal reported that “governments and businesses are increasingly accepting what epidemiologists have long warned: The pathogen will circulate for years, or even decades, leaving society to coexist with Covid-19 much as it does with other endemic diseases like flu, measles, and HIV.”
Critical thinking is the American way, and the only thing that will move the country forward. Can we get back to that?
Scott Street is a Democratic lawyer and consultant in Los Angeles. He regularly writes about legal and political issues.