Supreme Court of the United States.

The Bind We’re in — And How the Supreme Court Put Us There

By Jennifer Bard

As the COVID-19 pandemic rages into its third year of global death and destruction, the Supreme Court of the United States has effectively thwarted every measure by federal or state government to implement the public health tools that for hundreds of years have been used to stop the spread of contagious disease. They have done so by operationalizing what were previously fringe and relatively harmless academic views in ways that extend their powers beyond any previous boundaries. These include, but are not limited to, extending the protection for religious exercise past any previously imagined, and limiting Congressional authority to respond to emergencies by imposing impossible standards of specificity on its delegation of authority to the agencies which it creates, funds, and directly oversees.

In so doing, the Court has not only undermined the health of the nation, and pushed millions of people into unnecessary long-term disability, which our fragmented health care and social security system is unequipped to handle. It has also threatened our national security by infecting what is already more than half of the children in the country with a virus that has the potential to damage every organ in their bodies, from heart to brain.

Restrictions on Agency Actions

The Court has successfully limited Congress and the President’s authority to respond to emergencies by imposing impossible standards for justifying agency actions.

One of the ways the Court is thwarting Congress is through a series of shadow docket memorandum rulings, finding that they had incorrectly or inappropriately “delegated its authority” to the very agencies it created and granted, in this context, broad emergency powers to respond to exactly this kind of public health crisis. While the direct results of these actions have been to stop the CDC from halting evictions or OSHA from requiring employers to protect employees, indirectly they have dissuaded the Biden administration from using what would otherwise be its most powerful tool: the agencies created by Congress specifically to respond in times of public health emergency.

Few have heeded what turns out to be Justice Kagan’s prescient warning in February 2021 when, in a shadow docket memorandum opinion, she wrote: “it is alarming that the Court second-guesses the judgments of expert officials and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.”

By rejecting Congress’ decision to create agencies to provide the expertise necessary to turn laws into action, the Court has also rejected over one hundred years of its own precedent granting deference to the scientific decisions made by experts in both state and federal government faced with threats to public health. This trend is evident not just in relation to the pandemic, but in issues such climate change, sentencing juveniles, genetics, and, of course, reproduction. The rejection of science in this latter area has emboldened states to pass laws banning life-saving surgery for ectopic pregnancies, and prescriptions for gender affirming care.

Why is the Court doing this? Whose interests do they advance in thwarting efforts by the President and Governors to protect the public against threats to public health?

First, the stability provided by leaving health and safety decisions to agencies has always been seen as a barrier to those who want rapid change and a bulwark to those comfortable with the status quo. Depending on their views, scholars and strategists have, for decades, sought to either breach or strengthen this barrier. In 1984, the Supreme Court shut down this dispute by finding that agency decisions deserved considerable deference, but, since then, as the composition of the Court has changed, arguments seriously limiting agencies’ abilities to do the work for which they were created have gained legal traction.

Second, while couched in language claiming to respect the Constitution’s distribution of authority between the Executive and Legislative Branches, many of the current Supreme Court’s objections to agency action are a cloak for objection to any federal action.  While decisions blocking agencies may be framed in terms of objections to “how” Congress has delegated its authority, the effect is to limit Congress’ the ability to have any authority at all to address threats to the nation’s health and safety.

What might have been dismissed as harmless or even mischievous opinions when the late Justice Scalia and his frequent partner in dissent Justice Thomas were advancing their agenda as a minority, these moves to undermine the administrative state have become dangerous as they impede the government’s efforts to address an ever growing list of threats to health and safety  .

By endorsing an until now little-credited argument that Congress couldn’t delegate its powers to the agencies it created, funds, and oversees to do anything “important” or “major,” the Supreme Court is undermining, not supporting, the will of the electorate.

Nothing in the Constitution gives the Court authority to interpret the Constitutional boundaries of Congressional and Executive authority. So, while efforts by Congress to take action such as limiting the Supreme Court’s ability to use its shadow docket to quickly stymie implementation of laws intended to protect health and safety or, more broadly, to stop individual district courts from issuing nationwide injunctions, are probably too little and late, there are many substantive proposals, many worthy of serious for consideration ( a Google search “reforming the supreme court turned up 8,650,000 results in .46 seconds).

Over-Deference to Religion

In addition to advancing fringe views on Congress’ ability to delegate authority to agencies, the Supreme Court has also responded to what it believes to be a widespread hostility to religion by increasing its already high level of deference and exempting nearly any person or entity claiming any form of religious belief from any governmental mandate or workplace requirement they find burdensome.

The result has been to expand the protection of free exercise of religion beyond any previously provided. Moreover, they have done so with very little historic support. Even assuming the framers’ strong intent to counter the religious persecution they experienced under British rule, there is no hint they ever imagined a situation in which one person’s religious beliefs could be allowed to endanger the lives of others. Yet the Court’s invalidation of California’s COVID-19 policy limiting indoor gatherings (as applied to worship services) has effectively done just that by advancing an impossible standard: if anyone is exempt from a law for any reason, then individuals or entities advancing religious claims must be exempt as well.


Justice Scalia often advanced the arguments now being used to support restriction of agency authority or extensive protection of religious exercise with mostly good humor and what is frequently, here, here, and here, described as a twinkle in his eye. But in so doing he was safe in the knowledge that his mischief would have few real-world consequences.

While I certainly did not know Justice Scalia, I saw him once visibly shaken at the reaction of a rural community audience to what he apparently imagined was a laugh line. Explaining that his personal opinions played no role in his decisions but rather that his obligation was to follow the Constitution in interpreting a law, he told them he would even, if required, have to uphold a law imposing the death penalty for sodomy. But instead of laughs, he got a rousing ovation.  “Please stop, I was kidding,” he felt compelled to say to a group that very much hoped he wasn’t.

But sometimes a joke goes too far. Today, as thousands more people die of COVID-19 in the United States, as climate change triggers increasingly severe storms, and Russia continues its war of aggression on neighboring states that threatens global, nuclear annihilation, it is time to step away from this destructive path where nine unelected individuals can decide the fate of the world and return to the system where fairly elected representatives are allowed to work with subject matter experts in making and implementing the laws we need to keep us safe and healthy.

Jennifer S. Bard

Jennifer S. Bard is a professor of law at the University of Cincinnati College of Law where she also holds an appointment as professor in the Department of Internal Medicine at the University of Cincinnati College of Medicine. Prior to joining the University of Cincinnati, Bard was associate vice provost for academic engagement at Texas Tech University and was the Alvin R. Allison Professor of Law and director of the Health Law and JD/MD program at Texas Tech University School of Law. From 2012 to 2013, she served as associate dean for faculty research and development at Texas Tech Law.

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