measures instituted a century ago. There are better explanations for today’s newfound pandemic litigiousness. Modern medicine’s triumphs over disease have allowed Americans to lose sight of lessons their forebears once understood well: people are vulnerable to infection, and often the only solutions to such vulnerability are collective. As the Massachusetts Sanitary Commissionput it in 1850, “No family, no person liveth to himself alone.” One person’s conduct affects other people’s infection risk, and vice versa. Fifty years of relative safety from infectious disease have given rise to a libertarian hubris that now expresses itself in judicial decisions. Making matters worse, the adjudication of constitutional questions in the United States has also come to reflect more clearly the country’s partisan polarization. Courts have often been political. But as studies have shown, courts, especially the U.S. Supreme Court, have rarely been as partisan as they are today. During the COVID19- pandemic, time and time again, Republican-appointed or Republicanelected judges have challenged measures enacted by Democrats in local or state governments.
Emergency Powers of the Governor Act, which had been in place since 1945, on the grounds that it violated the Michigan constitution. Many of the challenges to local public health regulations have come from religious leaders and religious institutions. Plaintiffs have contested local measures and sought judicial relief on religious grounds in states across the country: in California, New York, Illinois, Kentucky, Kansas, Louisiana, Colorado, and elsewhere. Unlike in 1918 and 1919, over the past year courts have ruled in favor of such challenges. The U.S. Supreme Courtjoined the fray on the night before Thanksgiving, issuing its injunction in the New York case on rules for religious gatherings.
A PARTISAN AGE The sudden spike in constitutional challenges to pandemic restrictions—and the courts’ sudden willingness to hear them—cannot be explained by the restrictions themselves. As noted above, the measures put in place by state and local governments to contain COVID19- are virtually indistinguishable from the
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In the Kansas case, a federal judge appointed by President Donald Trump overturned an emergency directive issued by the defendant, Governor Laura Kelly, who is a Democrat. In the Wisconsin case, the four judges who struck down the state’s stay-at-home and businessclosure orders are closely connected to the Republican Party; Andrea Palm, the secretary-designee who issued the orders, is a Democrat. In Pennsylvania, the governor, Tom Wolf, is a Democrat while the federal judge who overturned his public health order was appointed by Trump. Three of the five justices who voted to prevent New York’s Democratic governor, Andrew Cuomo, from enforcing occupancy limits in houses of worship were appointed by Trump, while the other two justices were appointed by previous Republican presidents. And on and on it goes. With few exceptions, the unprecedented constitutional challenges of this pandemic are part of an effort led by jurists affiliated with the Republican Party seeking to disable age-old and once bipartisan public health powers of state and local governments. The new cases dream up a tradition of rugged American individualism in the face of epidemics. But Justice Harlan’s opinion continues to offer the definitive rejoinder to this fantasy: “Real liberty for all,” he observed, does not exist if people act “regardless of the injury that may be done to others.” A century on, his words still ring true.
