The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.