The man's got a point.

I think the majority just straight up punted.

The implication is they think pandemic is extraordinary condition and states deserve some leeway before the SCOTUS steps in. However, if the merits of the case were to be tested, I suspect they'd side with the church.

I suspect Roberts doesn't want to make new law now on how much, in essence, emergency powers (leeway in emergency situations) states have to deal with a pandemic before the courts need to step in.

To rule otherwise would force SCOTUS to make landmark law defining the contours of states' ability, which most people agree they probably need/have, to discriminate against churches in some instances to deal with a pandemic. At a minimum, IMO, they'd have to define how far government's obviously "compelling interest" in managing a pandemic extends and how "narrowly tailored" such discriminating laws must be in the context of a pandemic.

Both questions are deeply rooted in politics, science, and social policy. The kind of thing that SCOTUS historically have avoided as much as possible.

The procedural posture on both CA and NV cases is basically SCOTUS punted and declined to intervene.

In a year or so, I am going to guess we'll probably get a circuit split forcing SCOTUS to hear a case (and they might choose to hear a case even without circuit split once the justices have thought things out more) and I think Roberts will look for a case like Nevada's where SCOTUS could craft a very narrow rule that basically bans pretty blatant discrimination like Nevada's (or allow it by saying Nevada had a very compelling state interest to open casinos because its economy depends so heavily on casinos). That should punt the ball hard enough to allow Roberts/SCOTUS to not hear the question for a while.

https://www.cnn.com/2020/07/29/polit...nts/index.html

Very solid read on Kavanaugh.

He's shaping up to be more Roberts than Scalia. Conservative in disposition but ultimately more concerned about the role of the court and his own place in history.

Trump administration refusing to process new DACA applications seems like a pretty clear violation of the DACA decision. What is the aim here? To close down DACA properly and have it all declared moot? I guess the Court wouldn’t force them to process the applications in that case?

The district judge already gave orders to process the applications. The White House ignored it.

We're witnessing history.

Well, you're basically in a political catch-22.

The courts can tell the executive branch to follow the law, but if they deny it then the departments that can do something about it is under the control of the executive branch (and most under temporary leadership so not senate confirmed). The fail-safe for these types of shenanigans is impeachment, which the executive branch knows it will walk away from.

Makes me glad to live in my country. If parliament wants to get rid of the cabinet here, all they need is a simple majority and there is no constitutional mandate to offer a reason whatsoever.

I think many fail to realize how much a modern democracy relies on norms and not always laws. Laws have loopholes and take time, even the most draconian regimes can claim to fulfill noble laws without problem. Solid norms is the defining factor of a healthy democracy.

Well case law is also the law of the land (not sure how it works where you are). I think what’s separating us from autocracy is basically just those in power choosing to adhere to the rule of law.

I mean it’s been a while but the Soviets had a pretty good constitution iirc.

Yes, but that's pretty much the only thing that ever separates non-autocracies from autocracies.

There's always the small matter of whose side the military are on. Ultimately, it's always force or the threat of force.

Historically, once democracy starts to fall apart, it's usually the generals that dictate who takes power.

Is this still good law?

https://supreme.justia.com/cases/federal/us/197/11/

I read an article claiming mask mandates are constitutional based upon above case, but its over 100 years old.

Someone more steeped in con law probably should chime in but here is my uninformed take based on murky memories of con law and bar review classes.

I don’t know the exact judicial history but that case looks like a precursor to SCOTUS’ “rational basis” and “strict scrutiny” tests. The facts of the case and ruling are so narrow that the case itself is almost certainly still good law but it’s applicability to mask mandates is probably limited.

WRT mask mandates, I think the courts have to decide:
1. Are they sufficient intrusion on personal liberty to warrant strict scrutiny?
2. Managing a pandemic a sufficiently compelling state interest?
3. Mask mandates sufficiently related to 2?
4. Mandates least restrictive means?

I think the answer is yes on all four if court is pushed to rule but they will do so on very narrow definition of the facts. I also think there is a good chance they will decline to actually rule on the facts but will just decline to overturn a ruling upholding a mandate and send it back down for lower courts to go through the motions to confirm. This is probably the right move since it will buy courts time to wait for scientific data to come in.

Again, con law isn’t my field and my take is rather uninformed and based on pretty murky memory with no recollection of the judicial history that led to where we are.

Thanks, appreciate the post.

So I'm guessing (or at least hoping) masks would probably pass strict scrutiny due to compelling interest = public health, and masks not really being restrictive? I have read about people filing legal challenges, but don't think they have really gotten anywhere.

I wonder how draconian mandatory quarantine procedures, as they do in some other countries, would hold up. That would seem a huge infringement upon personal liberty, as opposed to masks which I see as almost negligible.

To fit the framework I'd argue:

Pandemics = compelling public interest, citing the 100+ old case and most likely others
Masks = very much related to that compelling state interest
Masks = cheap, relatively light restriction on personal freedom
Masks = effective and there is nothing less restrictive to replace it (even if other measures are effective/more effective, as long as maks add utility, they're probably okay)

My gut feeling is the Roberts court will almost certainly find a way to okay the masks mandates if they are forced to rule on it. What would hold them back from making such a ruling is they would feel the need to find a legal reasoning that could get them at least a 6-3 majority and not make overly broad law that gives states essentially unlimited power. If Roberts can craft a very narrow ruling, I think even Alito could be moved to vote in favor of the masks mandate although recent rulings suggest Roberts are pretty content with 6-3s and 7-2s and are quite okay with letting Alito hangout with Thomas in their "scathing" dissents.

Seems seat belt laws are a direct analogy to mask, or laws requiring bumpers on automobiles.

I didn't think about that but I agree wholeheartedly now you have mentioned it.

Not sure about that - isn't the primary purpose of masks to protect others?

There are many similar such legal summaries. Who it protects is not really relevant. They can mandate you to wear condom during sex, if they wanted to (enforcement would be questionable, though).

Yeah just my lay opinion but Roberts in particular seems pretty willing to go the common sense route on things. Like all your legal arguments would be the same if some overzealous mayor tried to put in a mask mandate in 2009 during the H1N1 outbreak that I could see the court overturning. So it’s less law in a vacuum and more “this seems like the right result for this specific situation, find the laws to justify it”.

I looked up seat belt history and it actually looks like very similar arguments (including protecting passenger next to you) were raised in state courts and SCOTUS just never even granted cert.

Closest case I found was Altwater vs. City of Lago Vista. In that case, petitioner were arrested and put in jail for seat belt violations. The constitutionality of the seat belt laws didn't come up at all on the SCOTUS level. The case has come to stand for SCOTUS okaying arrests for minor misdemeanor offenses.

Given my cursory research into the topic, I think the current situation is seat belt laws aren't something SCOTUS (including Thomas btw) thinks are worth reviewing. That makes me even more certain SCOTUS will affirm mask mandates if forced to review them, even if the mandates were for H1N1, heck, I think mask mandates would work for the flu season.

Interesting, I just kind of assumed that they would find a way to undo a mask mandate back when that stuff wasn't even on the radar. It's probably an unrealistic scenario though. Just because Governors etc probably would have blocked it before Covid.

I was surprised too.

I spent a little time in Lexis and found similar cases for laws requiring helmets for bicycle and motorcycle riders.

Multiple petitions to SCOTUS to strike such laws down and SCOTUS basically denied cert without explanation or even argument. They don't think it's worth reviewing.

You could argue these laws are tied to cases that holding driving and using public highways is a privilege, not a right, though.

Still, I think SCOTUS default position is actually small impositions on individuals to protect themselves and those around them are perfectly fair game. And I think that default position is held even by Thomas and Alito.

And I guess it kinda makes sense that the liberal and conservative sides would come together on this if you look at their overall philosophies. Liberals think the government should have fairly broad power when it comes to public safety and conservatives don’t think federal courts should be telling states how to deal with these matters.

Since nobody is making the case that these laws particularly impact women, minorities, religious people or any of the hot button groups the court likes to weigh in on they just aren’t interested. Thanks for looking on Lexis. Wouldn’t have been able to do that myself.

I think the courts have been rather strong advocates of governments encroaching upon liberty in the name of safety and security. If they don't have a problem with the patriot act, they are not going to have an issue with mask.

https://www.cnn.com/2020/08/20/polit...rds/index.html

I was wrong. District court judge, in no uncertain terms, said the subpoenas on Mazar’s for Trump’s financials are valid.

I am very happy to be wrong in this case.

RBG has passed away.

https://www.cnn.com/2020/09/18/polit...ead/index.html