The Supreme Court Is a Threat to Democracy

By Branko Marcetic, Jacobin

30 August 21

Last week’s Supreme Court decision striking down the national eviction moratorium was a lawless power grab by an increasingly out-of-control institution.

t’s great to be a Supreme Court justice in the United States. In theory, your job is to decide if government actions, whether laws passed or actions taken by executive order, are permitted by the bounds of existing law and the US Constitution. In reality, if you want, you can repeal, change, or even make government policy based on your own personal beliefs, provided you have enough like-minded colleagues to vote with you, and as long as you use your legal skills to creatively interpret a legal text in whatever way you need to justify your decision.

The tug-of-war over the federal eviction moratorium, finally settled Thursday in a 6-3 decision by the Supreme Court, is an ideal example. Here is the part of the 1944 Public Health Service Act that Donald Trump, and then Joe Biden, used to order a nationwide pause on evictions during the pandemic:

The [CDC], with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

The text is pretty clear. The law says the CDC can put in place and enforce regulations that prevent infectious diseases from spreading from state to state, examples of which include inspection, pest extermination, and other measures the CDC decides are necessary — a broad mandate that gives the agency wide latitude to act to contain a killer pandemic.

So is the government’s reasoning. Given the highly infectious nature of this coronavirus, especially the Delta variant ravaging the country right now — and given the fact that homelessness is a major risk factor for getting COVID, which would only get worse if millions of people were abruptly forced to move in with family or seek emergency shelter — temporarily stopping people from being evicted would fall into the broad remit the law gives the CDC to stop a disease from spreading through the country. This is exactly why judges in several lower courts left the ban in place, including one Trump appointee in Georgia, who wrote that “in the situation we have here — an unprecedented pandemic with widespread contagion — this court finds that the CDC’s response is reasonably calibrated to the seriousness of the disease it is combatting.”

Luckily for the Wall Street housing barons and realtors’ associations of the world, that’s nothing a little bit of creative reading can’t fix. When a different Trump-appointed US district court judge struck down the original moratorium back in May, her reasoning was that the CDC’s clear authority to decide on regulations needed to halt an infectious disease in its tracks was somehow “tethered to — and narrowed by — the second sentence” of the law, namely the list of examples given: inspection, fumigation, disinfection, sanitation, pest extermination, and the “destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.”

The fact that this list ended with a mandate for unspecified “other measures” didn’t matter either, according to the judge: because they were named last, they had to be “similar in nature to those listed” right before, and specifically

they must be directed toward “animals or articles,” and second, those “animals or articles” must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.”

Needless to say, this is not how any normal human being with a decent grasp of English syntax would read that paragraph, and no evidence was offered that the 1944 law’s drafters meant it that way. But once you’re a judge for life, the rules of language fly out the window, if that’s what you want them to do.

The Supreme Court’s invalidation of Biden’s latest version of the order, which had been amended to target only the parts of the country hardest hit by the virus, relies partly on this same wordplay. But what really makes it interesting is the nakedly ideological terms on which the court’s right-wing supermajority rests its decision in the rest of the opinion.

Charging that the CDC set up the eviction pause “in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination” — a misleading description of the law before you even ask yourself why it matters how old it is — the unsigned opinion goes on to fret about what kinds of harrowing measures the government could compel the private sector to carry out if the moratorium was allowed to stand:

Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?

Such horrors aren’t worth even thinking about.

The opinion also dwells at some length on the plight of landlords. “The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery,” it states. “Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means.” It alludes to the “financial burden on landlords” and charges that “vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords has continued to increase.”

“And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership — the right to exclude,” it concludes. A long-standing part of its view of private property rights, the court most recently used that same right to bar California unions from being able to go onto business premises for three hours a day, 120 days a year to recruit members.

Tenants are mentioned only a handful of times in the opinion, once to dismiss out of hand the idea evicted renters could end up spreading the virus across state lines (even though research suggests that’s exactly what would happen), and several times only in relation to the burden they put on landlords. Somehow, though their task was purely to judge whether the CDC was acting within the letter of the law when it paused evictions as a pandemic-control measure, the court’s “textualists” and “originalists” were mostly preoccupied with whether or not the measure is fair to landlords.

It’s worth noting the remarkable similarity between the rhetoric of the justices’ argument and the arguments voiced last year by ex–Wall Street banker and senator Pat Toomey (R-PA), the former head of the right-wing plutocrats group the Club for Growth, who warned last year that “if the CDC has the authority to force landlords to effectively give away their product for free,” then General Motors could “be forced to give people cars unless they otherwise crowd into subways.” It’s also worth noting that the CDC powers in question are not really limitless: this authority only exists in relation to the pandemic, and few measures are as directly connected to stopping the spread of COVID as stopping evictions.

How absurd is the right-wing justices’ reasoning here? In his dissent, Justice Steven Breyer not only pointed out that were eviction moratoriums used in the past by public health authorities during a pandemic, but even quotes one of the law’s drafters directly refuting the right-wing justices’ contorted reading of the law’s language. In a 1944 hearing on the bill, Alanson Wilcox explicitly told a congressional subcommittee that disposing of “animals and articles” is only mentioned because he wanted “more clearly to provide for it.”

The court’s “textualists” and “originalists” didn’t bother to determine the original spirit behind the language they ruled on, and they didn’t take a plain, commonsense reading of the unambiguous text. They made a brazenly ideological argument with the sole objective of defending property rights, whether that means landlords being able to kick people out of their houses or companies being free from legal mandates forcing them to make deliveries in a pandemic, public health be damned.

Though some have tried to paint this Supreme Court as surprisingly moderate, this is yet another major ruling from what’s already proving to be an extremely right-wing court. In place for life, these partisan justices will for decades be free to keep on deciding cases first and figuring out the legal reasoning later, making decisions based on their ideological convictions that will have vast reverberations for the rest of the country — an unelected “council of elders,” in the words of legal expert Samuel Moyn, who shape law on a whim, with no accountability or oversight. Today, it’s millions of struggling renters who lose out; tomorrow, the world.