The Supreme Court During COVID-19: Keeping Its Head When Those About it Were Losing Theirs

Alexander Hamilton's Federalist No. 78 suggests that one of the reasons for a life-tenured judiciary whose pay cannot be altered is because "judges may be an essential safeguard against the effects of occasional ill humours in the society." Our Nation's history is replete with instances of ill humor leading to violations of constitutional rights. Wars, epidemics, natural disasters, civil unrest, and economic crises all demand governments to act and act swiftly. But courts, and particularly the United States Supreme Court, are necessary to check governments when they go too far in contending with an emergency. Historically the country's courts have responded unevenly to governmental action during emergencies. In many instances, the federal courts, including the United States Supreme Court, have granted great deference to "the politically accountable" branches of government during emergencies. This deference has resulted in some of the most infamous decisions of the Supreme Court. As time has passed, the Supreme Court has granted less deference to the actions of the executive and legislative branches of government during emergencies. This withdrawal of deference can be seen in the post-9/11 and COVID-19 cases decided by the Court. The United States, like the rest of the world, has recently contended with the COVID-19 pandemic. The pandemic's impact has been profound. The death toll, financial loss, and disruption to everyday life has been extensive. To contend with the pandemic, local, state, and federal governments have taken action, and, at times, these actions have been challenged in court. This article examines several of those challenges and analyzes the Supreme Court's reaction to those challenges.