Did Chief Justice Roberts signal his Harry Blackmun moment?

Chief Justice Roberts, still haunted by the ghost of Lochner, may be trending towards Garcia v. San Antonio Metropolitan Transit Authority


A few moments ago, I blogged about South Bay United Pentecostal Church v. Newsom. Here, I will make three more observations about Chief Justice Roberts's concurrence.

First, Roberts's concurrence brought to mind his Obergefell dissent. Roberts didn't cite Holmes's dissent from Lochner v. New York (1905), but he may as well have. He relied on Jacobson v. Massachusetts (1905):

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts "[t]he safety and the health of the people" to the politically accountable officials of the States "to guard and protect." Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).

The citation to Jacobson is inapt under longstanding precedent. That case concerned (what we would today call) a substantive due process challenge to a mandatory vaccination law. Jacobson relied on the same sort of liberty-based argument raised in Lochner and other Progressive Era cases. Jacobson is still good law for other substantive due process cases, such as those involving abortion. Indeed, Roe v. Wade favorably cited Jacobson, as well as Buck v. Bell. But Jacobson has no relevance in a case concerning an enumerated provision of the Bill of Rights. Longstanding concerns about unelected judges creating free-floating rights is not a problem with the First Amendment. Footnote Four of Carolene Products (for those who find that dictum useful) specifically treats enumerated rights differently than unenumerated rights. (That disparity is inconsistent with the Ninth Amendment, but that debate is for another day.)

Judge Collins, who dissented from the 9th Circuit decision, recognized why Jacobson should be limited to substantive due process cases:

Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards. As the Second Circuit has recognized, Jacobson merely rejected what we would now call a "substantive due process" challenge to a compulsory vaccination requirement, holding that such a mandate "was within the State's police power." …

Jacobson had no occasion to address a Free Exercise claim, because none was presented there. (That is unsurprising, because the Free Exercise Clause had not yet been held to apply to the States when Jacobson was decided in 1905. See Phillips, 775 F.3d at 543.) Consequently, Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional right; on the contrary, Jacobson explicitly states that other constitutional limitations may continue to constrain government conduct….

After applying Jacobson to reject the plaintiffs' substantive due process challenge to New York's vaccination requirement, the court then addressed (and rejected) the plaintiffs' Free Exercise challenge by applying not Jacobson, but the familiar Lukumi framework that governs all Free Exercise claims.

Collins is right. The relevant framework is Lukumi. Not Jacobson. And that's the standard Justice Kavanuagh followed. Roberts is forever haunted by the ghosts of Lochner, so much so, that he is willing to discard the usual standards for First Amendment cases. Holmes is not relevant here.

Second, Roberts cites Marshall v. U.S. (1974).

When those officials "undertake[ ] to act in areas fraught with medical and scientific uncertainties," their latitude "must be especially broad." Marshall v. United States, 414 U. S. 417, 427 (1974).

I'll admit, I had never heard of this case. Indeed, California did not cite this case in its brief. It came from Roberts's own research. Why did he cite it? I'm not certain. Marshall did not concern any sort of emergency powers case. Rather, the facts were mundane. The syllabus offers this description: "Petitioner, who had three prior felony convictions, moved for commitment as a narcotic addict pursuant to Title II of the Narcotic Rehabilitation Act of 1966 (NARA), following a fourth felony conviction." Yawn. Here is the relevant passage that Roberts cited:

When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices.

I don't know why Roberts pulled out this Burger-authored decision. A statute that passes through bicameralism and presentment during the regular process is far from the Governor's emergency order in this case. Really, the most on-point citation would be Buck v. Bell, but Holmes's spirit doesn't travel quite that far.

Third, Roberts cites Garcia v. San Antonio Metropolitan Transit Authority (1985):

Where those broad limits are not exceeded, they should not be subject to second-guessing by an "unelected federal judiciary," which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).

This citation is like a constitutional Rorschach test. First, some background. In National League of Cities v. Usery (1976), the Supreme Court held that the Fair Labor Standards Act could not be applied to state governments. This significant decisions signaled the Court's burgeoning federalism jurisprudence. Critically, Justice Harry Blackmun–a recent Nixon appointee–joined Justice Rehnquist's majority opinion. Usery signaled that the Court would take federalism seriously.

However, nine years later, Blackmun reversed course. In Garcia, he cast the deciding vote to overrule Usery. Blackmun explained that the Usery test was "unsound in principle and unworkable in practice," and should be abandoned. Critically, he said that the political process, and not the courts, should be responsible for maintaining the principles of federalism. Here it the passage that Roberts cites:

The essence of our federal system is that within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal, no matter how unorthodox or unnecessary anyone else—including the judiciary—deems state involvement to be. Any rule of state immunity that looks to the "traditional," "integral," or "necessary" nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes. "The science of government … is the science of experiment," Anderson v. Dunn (1821), and the States cannot serve as laboratories for social and economic experiment, see New State Ice Co. v. Liebmann (1932) (Brandeis, J., dissenting), if they must pay an added price when they meet the changing needs of their citizenry by taking up functions that an earlier day and a different society left in private hands.

(And to continue the ode to Holmes, Blackmun cited Brandeis's dissent in New State Ice.)

Rehnquist wrote a now-famous dissent in Garcia that proved prescient:

 I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court.

Roberts, the former Rehnquist clerk, must have realized the significance of citing Blackmun's decision. Here, the citation was completely unnecessary and gratuitous. Garcia said nothing at all about "public health." The case was about the Fair Labor Standards Act and the Tenth Amendment. The citation to Jacobson would have been enough. There are so many other decisions that discuss "unelected judges." Roberts could have even cited his Obergefell dissent. But why Garcia? Or, Roberts could have written nothing at all.

Roberts seems really, really annoyed with his colleagues, in a very passive aggressive fashion. He accused the other conservatives with Lochnerism. He accused them of acting like "unelected" and "unaccountable" judges. And his charge is directed at the Court's newest member, Justice Kavanaugh. Perhaps Justice Alito didn't join the Kavanaugh dissent to stay out of Roberts's fire. If so, Alito's move ,may prove shrewd.

Roberts may be laying down a marker. Is this decision Chief Roberts's Harry Blackmun moment? Is he signaling that he will now go full-bore judicial restraint? Is he breaking up with the conservatives on the Court? I  hope I am not reading too much into a few citations. But Roberts can say a lot with few words.This concurrence is an inauspicious sign for conservatives, as this term draws to a close.

NEXT: Are houses of worship "comparable" to secular businesses like grocery stores, banks, and laundromats?

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  1. Time will tell, and as we found out from the ACA litigation, one never knows how the Chief will vote and he changes his mind. BUT, I would caution about reading too much into this. Kagan didn’t call for a response until Wednesday. The State filed its response Thursday at 7:50pm ET. Plaintiffs filed a reply Friday morning after 9am ET. So the full court had a fully-briefed case for less than 15 hours in which it voted and drafted opinions, all the while working remotely with the country burning.

    Now, the Supreme Court justices and their clerks are smart and fast workers. Could the Chief be sending a message in his opinion? Sure. (Though why didn’t the liberal justices join it?) But I think it’s folly to use this opinion to reach anything near a firm conclusion in that question. With just hours to read the record, vote, and write an opinion, a clerk may have just done a word search on Westlaw and cited cases that came up, without intending to signal the Chief breaking from the conservatives. Seems a very odd situation to announce such a momentous split. That’s my opinion at least. Occam’s razor.

    1. There is also the potential of extortion.

      I don’t want to go full Alex Jones here, but there are those on the left who want to see this purported “burning” to continue until November for political and financial reasons. Financial on two levels — first to necessitate Federal bailouts and second because they are personally profiting from all of this Kabuki Theater.

      _Marshall v. United States_ is a case that one in the health care complex might well know of as it involves medical law, and maybe Roberts was handed it by a third party. Perhaps the same one that caused his inexpiable flip on the NoBama NoCare case.

      1. I don’t want to go full Alex Jones here,

        One can’t be a little bit pregnant. You went Alex Jones.

      2. You went full Alex Jones.

        1. He didn’t have to go there.

          He’s been there for quite some time.

  2. I could see this quote in a case overturning Roe v. Wade:

    “When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices.”

    He might also mention the “unelected federal judiciary.” And, in relation to rejecting a health exception, “Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).”

    1. To be honest, that makes sense re why the liberal wing didn’t join his opinion. It would be just like Roberts to use this opinion as a test run for criticizing and chipping away at Roe.

      1. But that being said, I’ll still stick to my opinion that we shouldn’t read too much strategy into an opinion drafted in just a few hours, with clerks working remotely, while cities (including DC) burn. But even if it was happenstance, I can see him citing his opinion in this case in an abortion case, though something more incremental than flat out reversing Roe in Round 1.

        1. My bad — I misunderstood the reference to “the country burning.”

          The scary thing (to a person who cares about civil liberties, even of thugs) is the extent to which this Wuhan Flu Hysteria has justified an “EMERGENCY!!!” exception to the Constitution. Between what Bush 43 and Obama did, the Posse Comitatus Act has largely been gutted and Trump is free to send Federal Troops into these cities under the auspices of the *existing* medical emergency — i.e. the “…epidemic, or other serious public health emergency…” clause.

          And I do not believe this requires the approval of the state’s governor. Methinks that some of these Democratic and RINO Governors might want to have second thoughts about the dictatorial powers they have assumed and the precedent it could lead to here…

          1. And sometimes I can remember the </ commands in HTML….

    2. I don’t think abortion is “fraught with medical and scientific uncertainties.”

      The uncertainties are moral, religious, and philosophical.

  3. Suppose an eager governor decided that the typical flu (or even a particularly bad flu season, where the vaccine produced by the manufacturers didn’t really work well against that season’s strain) was an emergency, because it kills lots of people, and imposed social distancing limitations similar to the ones at issue here. How deferential must the court be in questioning the governor’s “medical and scientific” judgment as to the existence and scope of the emergency and the appropriateness of the response? Is there a sliding scale related to the number of projected deaths, above which you defer to the governor and below which you don’t? And whose projections are constitutionally challengeable by a court, if the governor purports to rely on them? At what point does the court say, “You know, I don’t think the risk of this activity justifies the restriction”? Never? Always? Sometimes?

    1. Better, what if a Governor took a similar approach to control of STDs (which *are* approaching epidemic levels on some college campi).

      Say the Governor were to take the Janet Mills approach and *criminalize* all “premarital” sex — or whatever we are supposed to call it now, as there is no intention of marriage in the “hook up” culture. Say the Governor were to impose circa-1950s behavioral norms upon young adults, enforced by the power of the state.

      But there is an “emergency” — and it’s every big as medically justifiable as the Wuhan Flu is at this point.


      1. Better, what if a Governor took a similar approach to control of STDs (which *are* approaching epidemic levels on some college campi).

        Yay! Dr. Ed is back in the made up fact business!

        1. Did he actually take a break? I don’t think it counts when he’s just sleeping………..

        2. Not all that much of a regular here, and don’t know Dr. Ed from Mr. Ed — but there’s a considerable difference between a hypothetical-based argument and a “made up fact”.

  4. Overreading cases is an occupational hazard for lawprofs, but this piece seems over the top. First, Lukumi does not dictate the outcome for which Justice “I like beer argues,” for nobody goes to grocery stores and cannabis dispensaries to sit on benches for an hour or more only to periodically stand and sing; perhaps that’s why Justice Alito declined to join his opinion. Second, the standard of review for orders seeking a stay pending appeal matters greatly; as our blog owner will attest, law is not mathematics; applying the religion clauses is not analogous to finding the square roots of 64. Reasonable people can disagree over the boundary between Smith’s general applicability standard and Lukumi’s disparate treatment standard, but no reasonable person can argue that plus and minus seven are the square roots of 64.

    If you genuinely think the Chief is reanimating Harry Blackmun, you should consider taking an antianxiety drug or at least reread Shelby County and Trump v. Hawaii

    1. You apparently don’t go to the grocery stores I do, or at least at the times I do. For a lot of middle-aged women, it very much is a social experience where they talk about their children (and grandchildren) and the rest. And as for teenagers, it’s flirt central. It’s what church (or the after-church social) was in an earlier era — and it’s why the community bulletin boards have moved from the church entryway to the supermarket entryway.

      Memory is that beer is sold in supermarkets in Maryland, so Justice “I like beer” probably has personal experience having to politely maneuver his carriage full of beer (which isn’t light) around all of these people. More likely, as a girl’s basketball coach, he’s probably had the experience of trying to get girls to stop flirting with the stockboys so he can get him/them OUT of the supermarket.

      1. I’m not only the foremost authority on the 3A but I am also the foremost authority on beer laws. In the 1980s a high school kid could go to DC and get beer and Mad Dog 20/20. So grocery stores don’t carry MD 20/20 which in any group would be necessary because beer is an acquired taste that many will never acquire which is why wine coolers were invented and now hard seltzer is a thing. Hard seltzer is essentially the easiest drinking alcohol with the fewest calories. Furthermore if we were to lower the drinking age we should have a “near beer” hard seltzer with an ABV around 4.2 instead of 5. A 5 ABV is too much for 19 year olds believe it or not and the cheap easy drinking light beers have ABV of 4.2.

      2. This does not seem to be an accurate description of any grocery store I’ve ever been to (including those in western Massachusetts), and it certainly isn’t true of the grocery stores in my area now.

        Perhaps this helps illustrate why the Chief Justice didn’t think the evidence was so u equivocal as to establish a clear entitlement to relief?

  5. I think you, and Kavanaugh, are have a mistake of fact. Churches are included in a list of examples, and are not treated differently than other institutions.

    There was no targeting of religion here (as there arguably was in KY), so I don’t think Lakumi is on point.

    Roberts seems really, really annoyed with his colleagues, in a very passive aggressive fashion.
    Oh, the irony.

  6. I fear Roberts is not going Blackmun, he’s going full Souter.

    1. I was going to roll my eyes at your complete lack of perspective, but it appears the stats don’t conform to my narrative:

      Although Roberts is by no means moving into the court’s liberal camp, the data concerning his ideological voting behavior do suggest a mild liberalizing over time. This, rather than that the court is shifting rightwards, seems more likely to be the cause of the observation that Roberts is siding with the court’s liberals more often lately, although Roberts’ shifting voting behavior could well also combine with a mild rightward push by the court’s conservatives.

      I mean, you’re still crying crisis hilariously early, but this time you’re not *completely* outside of the possibility space.

    2. We will know if he retires to New Hampshire to read books by himself…what a fulfilling life!

      1. St. George, Maine — out on the peninsula and then on his island in the river — isn’t much different.

        Wait — Janet Mill’s fiat applies to him as well.

        1. Maine coast is for summering with the Bushes. Souter probably lives in NH full time which means winters with a book by a fireplace and lots of time to contemplate how he used his 180 IQ to write a few opinions and read books. 😉

  7. Citing Marshall v. U.S. Roberts seems to turn it on its head. The original opinion contains to deference to the collective decisions of the legislature. Roberts seems to be endorsing the individual autonomy of “officials” who may not even be elected.

    Or did I miss something?

  8. Was Reynolds cited? Buh stare decisis. 😉

  9. If you are Christian and thinking about voting for Biden think really hard about that. Covid has given us a sampling of what our Democrat overlords have planned if they ever gain control. Don’t think for a minute that does not include a boat load of retaliation and revenge for those who backed Trump. They have gone full achtung mode and it will only get worse. I would go as far to say “if you are Christian and back Biden, then you ain’t Christian.”

    1. Is it that difficult to envision a Christian who might not wish to vote for a womanizing, selfish, vainglorious, lying, vulgar, Bible-ignorant, draft-dodging, bigoted, gluttonous, cruel, creditor-stiffing candidate?

      1. A lot of women voted for Bill Clinton.

    2. You think Roberts is part of the anti-Christian cabal?

      Your call to crisis looks directed at a quite small subset of Christians.

      1. The 5-4 vote shows why it is necessary to place solid conservatives on the Court. And, yes, Roberts is more of a problem usually then the solution.

        1. Roberts is looking out for Republicans just like Kennedy looked out for Republicans. Hillary would have won fairly easily running on gay marriage which is why Kennedy took it off the table. Saving the individual mandate was also great for Republicans because it was innocuous but it gave Republicans something to attack in what otherwise would have been a popular program. Finally I predict Roberts will push back Roe while keeping exceptions for rape and incest which will end up saving Republicans in the Sun Belt suburbs. So Republicans in Texas and Florida would overreach once Roe is overturned and institute the Taliban abortion laws and suburban moms would freak out and vote Democrat.

        2. No, dude, your rhetoric isn’t about bad policies, it’s thriller novel stuff. It’s about a conspiracy – a planned anti-Christian revenge.

          If a religious guy like Roberts isn’t with you, if he doesn’t hear your halcyon call to crisis, what hope is there for your dumb crusade?

  10. Roberts’s jurisprudence has always emphasized judicial modesty and deference to the political branches, and a keen focus on procedural details, including standards of review. Those concepts seem more than adequate to produce this opinion.

    1. I agree with you. I am not thrilled with the decision, but I understand it.

    2. Roberts’s jurisprudence has always emphasized judicial modesty and deference to the political branches? Remember Shelby County?

      1. “Emphasized” is not synonymous with “has invariably considered dispositive in every case”.

  11. Justice Collins forgets Baron v. Baltimore. The Religion Clauses do not apply to the states at all. They only apply through 14th Amendment substantive due process, and to the extent they represent substantive due process.

    So they work exactly like any orher substantive due process element.

    Moreover, after Korematsu, it seems hard to argue that government can put citizens in a concentration camp in an emergency, yet can’t prevent them from leaving it to go to church.

    1. Sorry, Judge Collins.

    2. Yes, I am confident that the government and the Ninth Circuit majority relied extensively on Korematsu in support of their position.

  12. As interesting as the method-of-incorporation logic immediately supra is, this might be about 1A serving effectively as a jurisdictional hook for what is at bottom a SDP claim. Emphasizing political accountability via federalism merely means that it’s impossible for the judiciary to set an independent and objective scale to determine whether the restrictions on religion are sufficiently onerous. The SDP calculus has to be set before a FE claim can be made.

    Mr. D.

  13. I think Blackmun’s reasoning in Garcia could just as easily be used to justify extending Usery to all state employees rather than just “core state function” ones, as to overruling it entirely. If Usery’s boundaries were bad and artificial and unmanageable, they could just as easily have been abolished by eliminating the exterior and making everything interior, as by eliminating the interior and and making everything exterior.

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