Sunday, August 9, 2020

For Justices, the Pandemic Is What It Is

          The White House and Congress combined last week to do little or nothing about the coronavirus pandemic. For its part, however, the Supreme Court stirred into action not to try to control the virus but to prevent a lower federal court from trying to combat it.

The Court’s worse-than-nothing action came in an interim order that blocked a federal judge’s injunction ordering the Orange County, California, sheriff to adopt stricter public-health protocols to limit coronavirus infection in the county’s jail. The order in <I>Barnes v. Ahlman</I>  to stay the district court’s May 27 injunction came on a 5-4 vote that pitted the five Republican-appointed conservatives against the four Democratic-appointed liberals.

The justices have been divided along partisan lines in dealing with the pandemic ever since the Court’s shameful decision on April 6 that overrode a judge’s decision to give Wisconsin voters more time to vote by absentee rather than risk their health by voting in person. The judge’s order in the Wisconsin case came only five days before the state’s April 7 election and thus went against the Supreme Court’s general rule against court-ordered changes in procedures shortly before an election.

The judge’s order in the Orange County jail case also went against the justices’ doubts about judicial micromanagement of conditions in prisons and jails. In issuing the injunction, however, Judge Jesus Bernal noted that the jail, with 3,000 detainees, had recorded 300 cases of coronavirus infection in the week before his order. Bernal credited testimony from inmates that the jail flouted social distancing guidelines by cramming inmates into buses for transport back and forth from the jail and allowing inmates to socialize in crowded dayrooms.

Bernal, appointed to the bench in 2012 by President Obama, is not the first district court judge to be wrist-slapped for trying to protect prisoners from the risk of COVID-19. A federal judge in Ohio issued orders on April 22 and May 19 that officials at the low-security federal prison in Elkton, Ohio, consider releasing medically vulnerable inmates or transferring them to another prison or home confinement.

Judge James Gwin, a Clinton appointee in his twenty-third year on the federal bench, acted after the Elkton Federal Correctional Facility recorded nine COVID-19 deaths in a short period of time. Lawyers from the American Civil Liberties Union told Gwin that one-fifth of the inmates at the facility had tested positive for the virus and that social distancing was “literally impossible” at the prison.

            In an initial action, the Court on May 26 rejected the government’s request to block Gwin’s order, but three conservative justices—Thomas, Alito, and Gorsuch—said they would have granted a stay. The government returned with a new application, docketed on June 1 as <I>Williams, Warden v. Wilson<I>. Acting on the application as supervising justice for the Sixth Circuit, Sotomayor stayed Gwin’s order on June 4 without referring the application to the full Court. Sotomayor gave no reason for granting the stay. None of the other justices commented by opinion pro or con.

            Two months later, Sotomayor issued a blistering dissent, joined by Ginsburg, in the Orange County jail case. The evidence, Sotomayor said, showed that the jail had been “deliberately indifferent to the serious risk COVID–19 posed to the health of its inmates.” In the face of that evidence, Sotomayor complained, the justices’ decision to stay Bernal’s order left the jail “to its own devices.”

            The justices had been similarly unmoved by the risks of coronavirus infection to Wisconsin voters in April. In that case, Judge William Conley expanded the deadline for mailing absentee ballots because of the crush of absentee ballot requests. The four liberal justices dissented from the decision in <I>Republican National Committee v. Democratic National Committee</I> to stay Conley’s order. In a sharply written dissent, Ginsburg argued that the decision would result in “massive disenfranchisement” of voters unwilling to put their health at risk by in-person voting.

The Court has shown no more concern for voters in subsequent cases. The Court on June 26 rebuffed a request by Texas Democrats to reinstate a federal judge’s order to allow expanded mail-in voting in the November election. Judge Fred Biery had ruled that the state was discriminating against younger voters by allowing no-excuse absentee voting by seniors but not by younger voters. The Court declined in <I>Texas Democratic Party v. Abbott</I> to lift the Fifth Circuit’s stay of Biery’s order, but Sotomayor issued a short statement urging the appeals court to rule on the “weighty” question well before the November election.

A week later, the Court on July 2 stayed a lower court’s order easing Alabama’s burdensome rules for voters to request absentee ballots. The four liberal justices dissented in <I>Merrill v. People First of Alabama</I>. Four weeks later, the Court on July 30 intervened on Idaho’s behalf in <I>Little v. Reclaim Idaho</I> to stay a judge’s decision to give the citizens’ group Reclaim Idaho more time to gather signatures to qualify an education funding initiative for the November ballot. The group had argued that social distancing guidelines were slowing the signature gathering process.

President Trump has been rightly lampooned since his comment to Axios reporter Jonathan Swan fatalistically accepting the deaths from the pandemic. “It is what it is,” Trump said, as though he is not the leader of the world’s most powerful nation. The Supreme Court itself is the most powerful court in the world, but the justices have shown no more inclination than Trump to deal with the virus with determination and resolve.

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