The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

COVID-19 and January 6 in the Rear-View Mirror


There are certain geopolitical events that are generation-defining. In my lifetime, I think they would be the fall of the Soviet Union, 9/11, the election of President Obama, the election of President Trump, the COVID-19 pandemic, and January 6. For earlier generations, they would have been Watergate, the moon landing, the Kennedy assassination, Pearl Harbor, and so on. These are moments in time that everyone remembers where they were when they happened, and after they occur, people say things will always be different. 

The Supreme Court, as a continuous institution, invariably had to discuss these epochal events in one form or another. Two cases decided this term provide a glimpse at how the Court, and indeed how history, will view the COVID-19 pandemic and January 6. In both Murthy v. Missouri and Fischer v. United States, the Court nonchalantly refers to each incident. 

During the height of the pandemic, Justice Breyer would trot out statistics about how many people might die without various safety protocols. But in Murthy, Justice Barrett's majority opinion barely mentions why the Biden Administration was leaning on social media companies to suppress certain messages. Even though Justice Barrett was not particularly sympathetic to the First Amendment claim, I get the distinct sense that she thought the government's actions were imprudent–especially with the benefit of hindsight. (We all remember how many people were wearing masks during her Rose Garden ceremony.)

And in Fischer, Chief Justice Roberts refers to those who breached the Capitol as a "crowd of supporters of then-President Donald Trump." Just a "crowd." Not a horde of insurrectionists. Justice Jackson uses slightly-more charged language–an "angry mob." Justice Barrett only calls them a "mob of rioters." Nothing even remotely close to the language of insurrection. (Sorry Will and Mike.)

If you had told me on January 7, 2021 that the Court would refer to the pandemic and the election certification with such bland language, I would have been skeptical. But here we are. Calamities grow calmer as they fade in the rear-view mirrors. And despite everything that has happened the last 3+ years, there is a very good chance that Donald Trump is re-elected. Does anyone even remember the rushed impeachment trial that occurred after he left office? Does anyone even care about Section 3 anymore? (Sorry Will and Mike.)

So maybe I was wrong. Perhaps the pandemic and January 6 were not generation-defining moments. These events were not the culmination of deeply-rooted and longstanding societal movements. Rather, they were blips that came out of nowhere, and which faded once they were over. People seemed to have moved on from them.

I realize this is an apostasy in law professor circles, but if Trump prevails in the election, President Biden (or whoever is in office at the time by virtue of the Presidential Success Act or the 25th Amendment) should issue a complete pardon. As a practical matter, it will not matter if the President issues such a pardon. On January 20, 2025, Trump would certainly fire the special counsel, direct the Attorney General to dismiss the prosecution, and maybe even pardon himself. A pardon from Biden, at least, would require Trump to accept it–and perhaps people can see that acceptance as some act of contrition. This was how Gerry Ford viewed his pardon of Nixon. Trump, however, may not reject the pardon, which would be a symbolic act unto itself. If Biden loses, his political career is over one way or the another, and he could shoulder the political burden.

The harder burden is whether the Governor of New York would issue a pardon. I am doubtful, but I think that sentence would have no bearing until Trump completes his second term.