Last month, a federal district judge in Pennsylvania appointed by President Trump struck down the state’s business closure rules and its limits on gatherings. The judge in the case, William Stickman, revived hoary ideas about freedom of contract and laissez-faire economic policy that once led the courts to strike down protective labor legislation like wage and hour laws.
And back in the spring, four justices connected to the Republican Party on the Wisconsin Supreme Court overturned their state’s common-sense emergency Covid-19 rules over the dissents of three colleagues.
The U.S. Supreme Court threatens to get into the action, too. In May, four conservative justices (Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) dissented from an order in South Bay United Pentecostal Church v. Newsom allowing California’s Covid-19-related restrictions to remain in place for gatherings at places of worship. Then, in Calvary Chapel Dayton Valley v. Sisolak, decided at the end of July, those same justices dissented from a similar order leaving Nevada’s restrictions intact.
Next month, the court is scheduled to hear arguments on a startling and widely criticized decision from the U.S. Court of Appeals for the Fifth Circuit in Texas last year that offers yet another opportunity to strike down the Affordable Care Act. The health care of millions could be cast into question even as the pandemic rages.
All of this is a sharp departure from a long history of judicial solicitude toward state powers during epidemics. In the past, when epidemics have threatened white Americans and those with political clout, courts found ways to uphold broad state powers. Now a new generation of judges, propelled by partisan energies, look to deprive states of the power to fight for the sick and dying in a pandemic in which the victims are disproportionately Black and brown.
The results are already devastating.
John Fabian Witt is a law professor at Yale and the author of the forthcoming “American Contagions: Epidemics and the Law From Smallpox to Covid-19.”
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