“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Justices Brett Kavanaugh and Neil Gorsuch cast deciding votes in a 5-4 order that halted a district court injunction requiring a California prison to comply with CDC guidelines on COVID-19. The August 2020 order was in Barnes v Ahlman.

Individuals confined in the Orange County Jail in California, including people who were awaiting trial and have not been convicted, filed suit in April because of the failure of officials to take steps to mitigate the serious risk of COVID-19 infection there. Based on extensive documentation and affidavits, a federal district court issued a preliminary injunction in May requiring the jail to comply with CDC guidelines for such institutions, such as increasing social distancing and providing individuals with soap and hand towels to allow frequent hand-washing.

The Ninth Circuit refused to stay the injunction while an appeal to it is pending, although a Trump judge dissented as reported in this blog. In an unsigned short order, however, five Supreme Court justices including Gorsuch and Kavanaugh granted a stay of the injunction, which will last at least until the Ninth Circuit issues a decision on the merits and the Supreme Court decides whether to take the case.  The majority provided absolutely no explanation for its action.

Justice Sonia Sotomayor wrote a blistering dissent to what she called  “extraordinary intervention” by the Court majority. She pointed out that the order failed to respect the detailed factual findings of the district court, which found that jail officials fell “well short” of CDC guidelines and were exposing people there to  “significant risks from a highly contagious and potentially deadly disease.” Sotomayor noted that there were some 3,000 people at the jail, including almost 500 who are “medically vulnerable” and a number who have already contracted COVID-19, all of whom have been “stripped” of “virtually every means of self-protection” and are totally dependent on jail officials. The district court found that plaintiffs were likely to succeed in showing that those officials have been “deliberately indifferent” to health and safety needs, Sotomayor went on, through such actions as denying tests to symptomatic people, forcing people to be “transported back and forth to the jail in crammed buses,” placing bunk beds only “two to three feet apart,” and providing individuals with only “one small, hotel-sized bar of soap per week.”

Sotomayor concluded by criticizing the majority for intervening and stopping the injunction, “leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health” of the  people  “in its care.” As she also noted, this case is yet another example of the Court majority improperly intervening to “grant a stay before the Circuit below has heard and decided the case on the merits.”