Roman Catholic Diocese Part II: Told you so about Jacobson v. Massachusetts

Justice Gorsuch's reading of Jacobson tracks my own, almost to a tee. And Chief Justice Roberts acknowledges that he did not adopt Justice Harlan's constitutional framework.


This post is the second installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay "superprecedent."

In the past week, I wrote two posts about Jacobson v. Massachusetts, based on my Harvard JLPP article. Those posts were widely read. I suspect the Gorsuch chambers found them useful. Justice Gorsuch's reading of Jacobson tracks my own, almost to a tee. But the far more important development occurred in the dissent: Chief Justice Roberts acknowledged that his South Bay concurrence didn't actually rely on Jacobson's constitutional framework. Hallelujah.  How many district court judges read South Bay as if it adopted Justice Harlan's approach to constitutional scrutiny? These opinions may represent the single greatest misreading of a precedent in modern history.

Let's start with Justice Gorsuch's analysis. First, Gorsuch recited the actual facts of Jacobson. There was no forcible mandate to be vaccinated. People could instead choose to pay a $5 fine. Indeed, Gorsuch converts the $5 to present-day value as $140. (I offered the same calculation, but I rounded up to $150.)

Second, Gorsuch explains that "Jacobson predated the modern tiers of scrutiny, this Court essentially applied rational basis review to Henning Jacobson's challenge to a state." Indeed, the phrase "rational basis review" did not exist in the early 20th century, though the Court would sometimes use the phrase "rational."

Third, Gorsuch writes that Jacobson asserted what we would now call "implied 'substantive due process' right to 'bodily integrity' that emanated from the Fourteenth Amendment." Gorsuch's choice of the verb "emanated" was meant to ridicule Griswold v. Connecticut. And he completes the phrase in the next sentence:  "Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution's penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise." Of course, the crux of Griswold was that the right to privacy was an emanation from a penumbra from "textually explicit rights" in the Bill of Rights. Justice Douglas tried mightily to keep his opinion within the Footnote Four framework. He failed. I find it significant that the former Kennedy clerk offers this rebuke of substantive due process. This language will be quoted for years to come.

Fourth, Gorsuch wrote that the burden faced by Jacobson was "avoidable and relatively modest." He could "accept the vaccine, pay the fine, or identify a basis for exemption." This law, Gorsuch found, "easily survived rational basis review, and might even have survived strict scrutiny, given the opt-outs available to certain objectors." I agree.

Fifth, he turns to New York's law.

. . . the State has effectively sought to ban all traditional forms of worship in affected "zones" whenever the Governor decrees and for as long as he chooses. Nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights. In fact, Jacobson explained that the challenged law survived only because it did not "contravene the Constitution of the United States" or "infringe any right granted or secured by that instrument."

I would hesitate before trying to reconcile Jacobson with modern precedent. I think it is enough to say Jacobson is a 115-year old opinion that predates modern constitutional law. Leave it there. Don't try to graft Jacobson on modern doctrine.

Sixth, Gorsuch recognizes that no Justice disputes his reading of Jacobson.

Tellingly no Justice now disputes any of these points. Nor does any Justice seek to explain why anything other than our usual constitutional standards should apply during the current pandemic.

He is right. The 100+ judges who reflexively followed Jacobson should carefully reconsider their actions. They erred, greatly.

Seventh, Gorsuch addresses Chief Justice Roberts's South Bay concurrence

In fact, today the author of the South Bay concurrence even downplays the relevance of Jacobson for cases like the one before us. Post, at 2 (opiniono f ROBERTS, C. J.). All this is surely a welcome development. But it would require a serious rewriting of history to suggest, as THE CHIEF JUSTICE does, that the South Bay concurrence never really relied in significant measure on Jacobson. That was the first case South Bay cited on the substantive legal question before the Court, it was the only case cited involving a pandemic . . .

This argument is weak. Roberts wrote a single sentence that cited Jacobson in a very narrow context. He did not adopt Harlan's constitutional framework. The Chief torches Gorsuch in response. As much as I criticize the Chief, he never misses a kill shot he chooses to fire. He is still the Court's best technical writer.

The concurrence speculates that there is so much more to the sentence than meets the eye, invoking—among other interpretive tools—the new "first case cited" rule.

The fault does not lie with Roberts. It lies with the lower courts that cited it improperly. Last week, I wrote, "the South Bay concurrence has taken on a life of its own, far beyond the Chief's intentions." Roberts, in his own way, seems to express this view. I think Roberts was annoyed that so many judges read his shadow docket ruling as gospel. He wrote:

But while Jacobson occupies three pages of today's concurrence, it warranted exactly one sentence in South Bay. What did that one sentence say? Only that "[o]ur Constitution principally entrusts '[t]he safety and the health of the people' to the politically accountable officials of the States 'to guard and protect.'" South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring) (quoting Jacobson, 197 U. S., at 38). It is not clear which part of this lone quotation today's concurrence finds so discomfiting. The concurrence speculates that there is so much more to the sentence than meets the eye, invoking—among other interpretive tools—the new "first case cited" rule. But the actual proposition asserted should be uncontroversial, and the concurrence must reach beyond the words themselves to find the target it is looking for.

And Gorsuch reaches "beyond the words" to the lower courts that treated the concurrence as gospel:

. . . many lower courts quite understandably read [South Bay's] invocation as inviting them to slacken their enforcement of constitutional liberties while COVID lingers. See, e.g., Elim Romanian Pentecostal Church v. Pritzker, 962 F. 3d 341, 347 (CA7 2020) [Easterbook, J.]; Legacy Church, Inc. v. Kunkel, ___ F. Supp. 3d ___, ___ (NM 2020).

Judge Easterbrook, for example, carried the Chief's analysis to its logical conclusion.

Eighth, Justice Gorsuch trains his fire on the lower court judges who exercised judicial restraint:

Why have some mistaken this Court's modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.

The Chief is not happy with Gorsuch's rhetoric. He fires back:

To be clear, I do not regard my dissenting colleagues as "cutting the Constitution loose during a pandemic," yielding to "a particular judicial impulse to stay out of the way in times of crisis," or "shelter[ing] in place when the Constitution is under attack." Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.

Gorsuch needs to tone down his brash style. He is not impressing anyone with these barbs. I can see the Roberts-Gorsuch relationship becoming like a conservative version of the Frankfurter-Black feud. Restraint v. activism. Functionalist v. Textualism. And so on. Justice Kavanaugh's conciliatory approach will be far more effective over the long term.

NEXT: Roman Catholic Diocese Part I: The End of the South Bay "Superprecedent"

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  1. All I can say is: you’re a beast, Prof. Blackman. You’ve spent all night reading and blogging. I hope you sleep in today.

    I agree with you that this is the New Roberts Court.

  2. Maybe someone who knows about litigation (I sure don’t; my subject was antibody-chemistry) can answer this for me. If someone’s actions cause a small but non-zero increase in my risk of suffering some natural misfortune (like a viral infection), can I sue for damages? What if there are millions like me, who all suffer similar small but foreseeable increase in risk of suffering?

    (An example, but not the only possible instance, might be, say, if someone refused to take protective measures to avoid spreading a pathogen during an epidemic because their kook-religion required them to get together in large groups and chant gobble-de-gook.)

    Would a class-action lawsuit have any chance of succeeding?

    1. No, it wouldn’t have any chance.

    2. Whenever you drive on the highway, you cause a small but non-zero increase in the risk of an accident harming me. No, I cannot sue you merely for driving on the highway.

      For your lawsuit to succeed, the hazard must be proximate and substantial to the harm it creates. What you describe would be rejected as far too speculative.

  3. In the past week, I wrote two posts about Jacobson v. Massachusetts, based on my Harvard JLPP article. Those posts were widely read. I suspect the Gorsuch chambers found them useful.

    This fucking guy.

    1. You’re quite the “guy” too, apparently.

    2. Yes, you’d have thought that after four years of The Donald, most folk would have begun to appreciate that self promotion with the dials set to Intergalactic Supervillain tends to dissipate rather than enhance the affection of onlookers, even on those occasions that you’re right.

      But some people are obviously blind to this. Something genetic, I guess. Or possibly something in the New York water system.

      1. Blackman and Trump are selling the same substandard goods to the same downscale customers.

  4. Are justices really petty enough to fight personal feuds in the way suggested here?

    Gorsuch is right about the 4 justices willing to put the Constitution away until the pandemic is over. We need the Constitution’s protection now and Roberts and the other three prefer the Constitution stay in quarantine for another half year.

  5. …..the burden faced by Jacobson was “avoidable and relatively modest.” He could “accept the vaccine, pay the fine, or identify a basis for exemption.”

    So isn’t this a tax then ?

    1. Apparently what makes a penalty a “tax” is having the IRS do the work of collecting it.

  6. “Justice Kavanaugh’s conciliatory approach will be far more effective over the long term.”

    I disagree. Where fundamental rights are at issue, the message needs to be clear and unadulterated. You don’t appease a bully.

    1. Agree, Gorsuch is the new Scalia, Thomas is the de facto Chief, and Roberts is now Souter.

      1. And five or six terms of a Democratic president is the new normal.

        Open wider, clingers. You do not genuinely believe your betters will suddenly lose control of the culture war, do you?

  7. Tone down his brash style? Even if the technical writing displayed here could be compared in any reasonable way with ‘brashness’, when it comes to defending the constitutional rights of Americans — seemingly washed so easily way by a manufactured crisis, “toning down” is the last thing Gorsuch should be doing.

      1. Strident wingnuts dreaming that the tide might finally be turning their way are among my favorite culture war casualties.

  8. “Gorsuch needs to tone down his brash style. He is not impressing anyone with these barbs.”

    I am not so sure. Gorsuch may become the shadow Chief Justice, with Roberts either in tow or in dissent. Roberts style of low key restraint is more seen as a complete lack of backbone. For example: The court had 10 second amendment cases last year, took one, and then Roberts chickened out.

    So long as Roberts lacks backbone, he will simply be a follower or a dissenter, not the real Chief Justice.

    1. I think that it is a fair assessment that Thomas is the de facto chief in the ever-growing instance that Robert will be joining the minority a la Souter. Gorsuch is essentially taking over Scalia’s role what will be interesting is to see what role Barrett plays. My money is that she sides with Gorsuch, Alito, and Thomas.

      1. I’ll reserve my judgment on these points until Georgia sends two senators to Washington.

  9. “Indeed, Gorsuch converts the $5 to present-day value as $140.”

    I wonder if such calculations shouldn’t be normalized to per capita income? The average annual income in 1905 was $2-400 a year.

    So, we’re talking a 40th to an 80th of your entire annual income. Currently that would be more like $800-1600.

  10. My Inside Baseball take is that Gorsuch is likely arguing with both Breyer and Sotomayor and, separately, Alito (FedSoc speech) for an audience of Kagan, Barrett, and ironically, Roberts.

    Take #2: The surprising thing for me is that the Court is angling towards a recently relatively undeveloped legal doctrine at the heart of the law (Substantive DP) in order to resolve an enormous social question that might shake the Republic. Have fun storming the castle.

    Take #3: An acupuncturist on a bike ran over Gorsuch’s dog after having a few glasses of wine.

    Mr. D.

  11. I am sure all the dead people will be thankful that they died in the name of doctrinal consistency.

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