Why the Supreme Court Won't Deal With COVID Cases

The Supreme Court has been taking recent flak from several conservative pundits.

They are attacking the court's decision to not hear COVID-19-related cases. As a result, a war of words has ensued, both inside and outside the court's marble temple in Washington, D.C., that feeds the political polemics with "red meat" rhetoric against the high court.

Senior Attorney Larry Salzman of the Pacific Legal Foundation, however, wants to dispel the notion that the Supreme Court is acting improperly. "The court has not accepted any case on the merits," he told Newsmax. "I think that many people would like them to do that, but as a general matter, it's pretty unusual, and they don't have to grant every petition.

"One reason, aside from disinterest in getting involved with state law, is that all of these cases have come up on emergency procedure. Filing under an emergency petition is an unconventional way that parties try to leap-frog their case up to the court. Traditionally, the court does not like granting emergency petitions if they don't have to or unless it is absolutely necessary for them to hear the cases."

That leaves the reader with the knee-jerk question as to why the Supreme Court is not taking any cases.

According to Salzman, "What may be happening is that the court is waiting to weigh in until after the issues have been properly adjudicated" in the lower federal courts, as well as the respective state courts, "so understanding that perspective can calm the tension about hearing [COVID-19-related] cases."

That is not to say, however, that these COVID-19 cases are lacking any pressing constitutional questions. Salzman highlighted, "What is interesting about the Calvary Chapel case, which had four justices that wanted to hear the case — that is pretty close to a majority, and more engagement than other cases — [is] it is signaling that the mood is shifting, they are aware of what has been going on around the country, and that there are serious constitutional issues that have to be addressed by the court.

"By and large, they really didn't like the discriminatory application of the reopening plans. What was catching their attention was: Why is it OK, as a matter of equal protection or because a church was involved, dealing with exercise of religion, for some businesses/institutions to be open and other businesses/institutions to not be open? If the reason is 'health and safety,' then why shouldn't that be applied across the board?

"Justice [Neil] Gorsuch caught that in a pithy way by asking the question ‘Why is Caesar's Palace [in Las Vegas] allowed to be open, but Calvary Church not allowed to host worship services?'"

There also remains the question of mootness, which occurs when a case loses a part of its justiciability — whether or not it is a matter capable of being adjudicated by a court of law — because the case is not live.

"The time sensitivity question surrounding most of these cases could very well be moot by the time the pandemic is over," Salzman told us. "They haven't taken cases, but they have taken actions on election law cases and criminal justice cases."

Perhaps the most educational opinion made by a justice came from Associate Justice Samuel Alito, who commented on the institutional preparedness — or lack thereof — of the so-called "Third Branch."

Salzman told us he felt Alito is particularly interesting by claiming "that not only was our health system unprepared for COVID-19, but also our legal system wasn't prepared either."

Our legal system wasn't prepared in two ways:

1. Governors reach for whatever emergency powers are on the books in order to do what they think they have to do to maintain public health. They are frequently violating the separation of powers, and what we are learning about the emergency powers that exist in these states is that the stipulations justifying the granting of these powers were sloppily written.
   Courts are going to have to weigh in to enforce the proper separation of powers. Most of the separation of powers questions are controlled by state constitutions, so state supreme courts must hear the cases first.
2. Whether it's governors or legislatures that decide whether or not to suspend schools, shutdown businesses, etc., they are relying on the police power to do it. The legal system is not prepared, because over the 20th century, the scope of police power and the discretion of public officials have expanded. We are caught now at a moment where we need to know to what extent the powers of the legislature and executive can infringe on personal liberties consistent with that police power. The courts don't have a ready answer because they have defaulted on a duty to describe and enforce the limits of the police power.

The most telling vignette from Alito came from his assessment "that all of the legal justifications are reaching back to a 1905 case called Jacobson v. Massachusetts that deals with mandatory vaccinations and [vaccine] exceptions. Alito raises caution in saying that lower courts are reading too much into that case and they need to seriously consider the limitations. For a justice to say to the lower courts to slow down and scrutinize these orders shows that they want lower courts to wrestle with these problems more."

In pointing the finger at the Supreme Court, people miss the fact that the American judicial system is far more extensive than those nine justices on a bench in Washington.

Cases percolate up to the Supreme Court through a lengthy appeals process, hence the court's nickname as the paramount "court of last resort." 

Such a concept was so implicit within the tempered minds of the framers of the Constitution, yet, sadly, it appears to be alien in the contemporaneous mindset of idealistic immediate gratification.

Michael Cozzi is a Ph.D. candidate at the Catholic University of America in Washington, D.C.