Shadow Docket

Supreme Court ends CDC's pandemic eviction moratorium with no hearings, over liberal dissent

The U.S. Supreme Court's conservative majority late Thursday allowed eviction proceedings to resume for as many as 3.5 million people, blocking a Biden administration ban on evictions in areas hard-hit by COVID-19. The court majority, in an unsigned option, said the Centers for Disease Control and Prevention had exceeded its authority in issuing the temporary moratorium, and "if a federally imposed eviction moratorium is to continue, Congress must specifically authorize it." 

The Supreme Court was ruling on whether the moratorium remained in effect while lower courts considered the challenge from landlords represented by the Georgia and Alabama chapters of the National Association of Realtors. But since the CDC's latest moratorium, issued Aug. 3, only lasted until Oct. 3, the court effectively quashed it. This was the Biden administration's second loss this week before the Supreme Court's "shadow docket" of unsigned, short "emergency" rulings issued with little briefing, no oral arguments, and frequently significant policy outcomes.

Justice Stephen Breyer alluded to that in a dissent joined by the court's other two liberals. "Applicants raise contested legal questions about an important federal statute on which the lower courts are split and on which this court has never actually spoken," he wrote. "These questions call for considered decision making, informed by full briefing and argument. Their answers impact the health of millions." The "public interest," Breyer added, "strongly favors respecting the CDC's judgment at this moment, when over 90 percent of counties are experiencing high transmission rates." 

The Supreme Court had suggested this outcome in June when five justices temporarily allowed the moratorium to continue through the end of July. At the time, Justice Brett Kavanaugh said Congress would have to re-authorize the moratorium for it to continue.

Still, this is Biden's second "shadow docket" loss before a Supreme Court that granted emergency relief to former President Donald Trump 28 of the 41 times his administration requested it, with "the justices increasingly using these emergency procedural orders to quietly but profoundly affect substantive policy," University of Texas law professor Steve Vladeck writes in The Washington Post. "Without providing more than one sentence of explanation" in their "shadow docket" rulings, it's hard to know "whether the court was showing special solicitude to the federal government in general, or to Trump specifically."