How the coronavirus fight might end up at the Supreme Court

Here are some of the cases that coronavirus could conceivably send to the Supreme Court.

Though it may now be difficult to imagine, at some point this crisis will end. Whether when a vaccine for the novel coronavirus is released or — heaven help us — well before then, new infections will slow and life will move back toward normal. Then it will be time to sue each other.

Salus populi suprema lex esto, wrote the Roman jurist Cicero: "The health [or welfare or common good] of the people should be the supreme law." But in the United States our literal supreme law is the Constitution, and the public health measures taken to curb the spread of COVID-19 are running into constitutional rights questions at every turn. Here are some of the cases that coronavirus could conceivably send to the Supreme Court.

First Amendment cases

The First Amendment protects our freedoms of religion, speech, press, assembly, and petition, and at least two of those could easily be the subject of post-pandemic lawsuits. The most obvious candidate is assembly, as a growing number of cities and states have issued some version of a stay-at-home order, putting police power behind the federal recommendation against gatherings of 10 or more.

Cases whose appeal potentially could go all the way to the top are already happening. In New Jersey, parents who hosted a party of several dozen people were charged with child endangerment. And in New Mexico, the president of the Albuquerque Tea Party has filed suit in federal court against Gov. Michelle Lujan Grisham (D), alleging her shelter-in-place order violates his right to free assembly and worship by prohibiting social and religious gatherings. The question for the Supreme Court would be whether that claim is correct, whether the state interest behind the shelter-in-place order is compelling enough to override First Amendment guarantees.

That brings us to the other probable type of First Amendment case, which would concern limits on free exercise of religion. While most churches and other places of worship have suspended in-person services, some — including a few megachurches which host crowds of thousands — have refused to close their doors. One recent survey of regular churchgoers found one in 10 reporting their churches are open.

A Florida pastor was arrested Monday for continuing live services and slapped with misdemeanor charges of unlawful assembly and violation of a public health emergency order. If convicted, he could be jailed for up to 60 days. It "looks like we're going to have to go to court over this because the church is encroached from every side," the pastor said in a video on Facebook. If the assembly restrictions specifically targeted religious gatherings, he'd have a strong case. As it is, they're content-neutral and will likely survive court challenge absent some novel argument.

Second Amendment cases

Guns and ammo ranked almost as high as toilet paper on some Americans' prep lists, but firearms sales were suspended in Los Angeles, New Jersey, Pennsylvania, and Washington state. New Orleans has an emergency proclamation which would permit the mayor to close gun shops, though that hasn't happened yet.

Pennsylvania's governor let gun sales resume at the urging of justices from the state's supreme court, and New Jersey's governor did the same Monday following multiple suits from gun rights groups. Other legal challenges are underway and could ultimately ask SCOTUS to settle whether the Second Amendment makes weapons sales an essential service.

Fourth Amendment cases

Civil libertarians like me have warned about lasting curtailment of personal freedoms stemming from the pandemic response, and the Fourth Amendment's guarantee of privacy is among the rights at risk. Officials are using cellphone location data to track population movement, and, as my colleague Navneet Alang has noted, that's unlikely to be the only privacy violation proposed as a means of fighting the pandemic.

Measures implemented in Israel, China, and South Korea include facial recognition software, CCTV monitoring, tracking of credit card purchases, and more. If governments in America attempt something similar, expect lawsuits. The ACLU is already on alert, even scrutinizing online learning apps which could violate students' privacy. The court here would be tasked with considering whether such encroachments on privacy breach the Fourth Amendment's mandate of specific warrants authorizing searches of our "persons, houses, papers, and effects," and, if so, whether the state interest in public health permits that breach.

Trial rights cases

The Trump administration's push to effectively suspend habeas corpus seems to have been stymied by congressional Democrats, but other violations of the Fifth, Sixth, Seventh, and Eighth Amendments, which protect our trial rights, are possible. Court closures could run afoul of the right to a speedy trial — Pennsylvania's top court, for example, has declared a statewide judicial emergency through mid-April — and the Justice Department's interest in video hearings raises questions about whether a video conference can be considered a public trial. Suspension of jury trials is a potential battle here, too. In each scenario, the Supreme Court would consider whether modifications to constitutionally-determined trial procedure were justified by the state interest in limiting the spread of infection.

Meanwhile, the risk of pandemic within jail and prison facilities has drawn attention to longstanding criminal justice reform issues, including needless pre-trial detention and inhumane conditions with insufficient medical care or hygiene products. Emergency policy changes — most notably large-scale release of pre-trial detainees who were held only because they couldn't afford bail — might fuel court challenges to the pre-pandemic status quo.

Abortion cases

Alabama, Iowa, Ohio, Oklahoma, and Texas all attempted to include abortion in the medical procedures temporarily suspended to conserve resources for treatment of COVID-19. Federal judges have blocked the order in Alabama, Ohio, and Texas, and legal fights are ongoing in the other two states.

"The Supreme Court has spoken clearly," wrote U.S. District Judge Lee Yeakel, a George W. Bush appointee, in the decision against Texas. "There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent 'except in a national emergency clause.'" The Supreme Court, however, might be interested in verbalizing such a clause, and Texas is trying to give it the chance.

Police power cases

This final class of cases may be the broadest. "Police power," in the words of American legal theorist Thomas Cooley, means the government's "system of internal regulation, by which it is sought not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others." More plainly, it's the power to police the public for the public good. In our country, per the 10th Amendment, it primarily belongs to the states, not the federal government.

This is why President Trump's talk about "opening up" the country by Easter was always meaningless. It's why New York Gov. Andrew Cuomo (D) reacted so vehemently to Trump's suggestion of a federal quarantine of the North Atlantic region, calling it a "declaration of war on states."

"The regulation of the health and safety of individuals 'is primarily, and historically, a matter of local concern,' the Supreme Court has held," a quartet of lawyers explain at the Lawfare blog. A wealth of SCOTUS precedent says "neither the president nor Congress can directly require states and cities to call off their 'shelter-in-place' orders, or to reopen schools and businesses."

Two types of lawsuits could happen here. One would see a state or group of states suing the federal government should Trump try to commandeer police power for Washington. The other would be a public challenge to a state's use of its police power, perhaps specifically to the manner of police enforcement (a crowd dispersal turned violent, for example) or, coming full circle back to the First Amendment cases, to the assembly ban itself. Police power is not unlimited, and the Supreme Court could be asked to judge whether state governments have claimed too much authority in their COVID-19 responses.

The Supreme Court has postponed its next round of oral arguments due to the novel coronavirus, a rarity in SCOTUS history, and it is unclear how the court will proceed as isolation orders lengthen. Whatever the justices decide, though, this pandemic may well give them a very full docket.


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