“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, Neil Gorsuch and Amy Coney Barrett appeared to cast deciding votes in an unsigned “shadow docket” opinion that effectively struck down the recent eviction moratorium of the Centers for Disease Control (CDC) that was promulgated because of the COVID-19 resurgence due to the Delta variant. The case marks the second time in just three days that Trump-nominated and other far-right justices have used the “shadow docket” to harm or invalidate important Biden Administration initiatives. The August 2021 eviction ruling was in Alabama Association of Realtors v Department of HHS.
Through much of the COVID-19 pandemic, the CDC has issued moratoriums on eviction of renters behind in their rent because of the dangerous public health consequences that would likely result. The CDC’s actions were upheld during the Trump Administration, including by Trump-nominated judges, but such judges began to rule the opposite way once Joe Biden became president. In late June, the Court narrowly rejected a challenge to the then-existing CDC order, with Trump justice Kavanaugh making clear that he would vote against any future CDC moratorium unless specifically authorized by Congress.
Congress was not able to act because of Republican opposition. Due to the dangerous resurgence of the pandemic caused by the Delta variant and based on existing CDC authority, the CDC issued a narrower eviction ban set to expire in October. Landlords and realtors nevertheless filed another challenge, seeking to end the stay against the earlier Trump judge order. When it was rejected by the DC Circuit, which again ruled that the CDC had the authority to issue the moratorium, the landlords again went to the Supreme Court.
In an unsigned “shadow docket” opinion on a Thursday night, the Court effectively struck down the CDC eviction moratorium. Although the opinion was unsigned, the fact that only the Court’s three moderates dissented suggests that all six of the other justices, including the three Trump justices, agreed. Tracking closely the arguments previously raised by Kavanaugh, the majority ruled that the landlords were “virtually certain” to succeed on their claims because Congress had not specifically authorized the moratorium and the more general CDC law, which had been relied upon to uphold the moratorium under the Trump Administration, was insufficient. Technically, the Court vacated a stay ordered in May of an earlier decision by a Trump district judge that invalidated the then-existing moratorium. Since the more recent CDC order was “virtually indistinguishable,” the Court ruled, its order would allow enforcement of the district court decision and effectively invalidate the moratorium.
Justice Stephen Breyer strongly dissented, on behalf of himself and Justices Sonia Sotomayor and Elena Kagan, Initially, he explained, it is not “demonstrably clear,” as precedent requires in order to vacate a lower court stay order, that the CDC lacks the authority to issue the moratorium. Breyer demonstrated that the current ban is “substantially more tailored” and narrow than the earlier nationwide ban, and “lower courts have split” on whether the broad CDC law authorizes such orders. The Court should require “full briefing and Argument” and “considered decisionmaking” before effectively invalidating the moratorium, Breyer wrote, not a “summary proceeding” like this one.
In addition, Breyer continued, the public interest and the threat to the “health of millions” warranted denial of the landlords’ request. Breyer carefully documented how COVID-19 transmission rates have recently “spiked” because of the Delta variant, reaching “150,000 new cases per day.” He pointed out that the CDC has predicted that without the ban, there is a “strong likelihood of mass evictions nationwide” with disastrous public health consequences, including hundreds of thousands of new cases and more than “10,000 deaths.” The Court should not be “second-guessing” the CDC’s judgment, Breyer warned, in light of the “irreparable harm” that is threatened.
Yet that is precisely what the Court majority did, as a result of the votes of the three Trump justices. Just two nights earlier, moreover, with only a one-sentence explanation, the Court majority issued a shadow docket order that refused to stay a Trump lower court injunction forcing the Biden Administration to reinstate the Trump harmful “remain in Mexico” immigration policy, as explained earlier in this blog. These two damaging decisions show the importance of reform of the Supreme Court and its “shadow docket”, as well as confirming Biden nominees promptly to federal court vacancies, as part of our fight for our courts,