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No summer vacation for the Supreme Court

Daniel Suhr | The justices used an overflowing docket to issue important, pandemic-related rulings


The U.S. Supreme Court building Associated Press/Photo by J. Scott Applewhite (file)

No summer vacation for the Supreme Court
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The first Monday in October marks the official start of the new term at the U.S. Supreme Court. Summertime is typically the slow period for our nation’s highest court. In June, the justices work intense hours, pushing themselves and their law clerks hard to finalize opinions by June 30, the last day of each annual term. For me, the final weeks of June feel like March Madness for basketball fans—the most wonderful time of the year, as the Court inevitably waits to finish its most controversial decisions until the last hour.

But then the justices recess for July, August, and September, only returning to the bench as fall begins. Most justices spend those summer months relaxing, lecturing, and perhaps teaching a class abroad. Justice Clarence Thomas and his wife Ginni hook up their RV and head out on the open road.

Inevitably, work intrudes on occasion, as some cases just cannot wait for the Court’s regular schedule. These emergency petitions are heard and decided without the regular routines of briefing and argument because of their time-sensitive nature. Though many in the media call this the Court’s “shadow docket,” there is nothing insidious or untoward about it. It is more properly called simply the orders list, as the Court issues orders and explanations on pending motions.

Historically, these appeals were often last-minute death-penalty cases, to the point where the employee in the clerk’s office designated to handle the emergency-petitions phone was known as “the death clerk.”

This is another tradition upended by the COVID-19 pandemic, as the Court’s emergency docket has exploded with time-sensitive appeals tied to restrictions in various public-health orders.

As Christians, we’ve been primarily interested in the Supreme Court’s treatment of the First Amendment rights of religious congregations to gather in person for services. Thankfully this case law has moved substantially in a positive direction since the pandemic began, with solid rulings for religious liberty in Diocese of Brooklyn v. Cuomo and Tandon v. Newsom.

More recently, however, the Supreme Court has decided two other important cases dealing with private property rights and executive authority.

In the first, the Court reviewed an executive order in New York that said residential tenants could suspend their own eviction proceedings by simply stating they could not pay their rent because of something having to do with COVID. The Supreme Court rejected that effort, saying that rental property owners were entitled to greater due-process protections than a simple, unsworn statement.

In the second, more important case, the Court heard an emergency appeal against the federal Centers for Disease Control, which had issued a series of nationwide eviction bans. The relevant federal law authorizes the CDC to fumigate, inspect, destroy infected livestock, and take “other measures” necessary to control an outbreak. The CDC tried to classify the nationwide eviction moratorium as such an “other measure.”

The Supreme Court had seen through that charade once already, more or less saying in June that congressional action was necessary to authorize an extension of the ban because the administration’s interpretation simply could not withstand the scrutiny of common sense. When a statute has a list of actions an agency can take, followed by a catch-all phrase like “and other measures,” activities taken under the catch-all must be similar in nature to the ones in the specified list. Otherwise, the catch-all becomes all-powerful, subsumes the list, and has no stopping point. In other words, the regulatory state would be unlimited in its powers.

The Biden Administration initially promised to honor the Court’s guidance. But when it failed to find the votes even in the Democratic-controlled U.S. House of Representatives, the White House flip-flopped and issued the extension anyway.

Thankfully the courts responded promptly, and the Supreme Court issued a clear-cut order that struck down the CDC’s eviction mandate. In doing so, the Court reminded the CDC that a pandemic is not an open-ended license for the CDC to take any action it thinks worthwhile—it does not become a super-government with unlimited powers whenever it thinks such powers would advance its public-health strategies.

With these cases, the Court also rightly reinforced that economic rights such as private property are entitled to the same expedited attention as other important rights such as religious liberty.

As the justices return to regular order this week, court watchers will look back on this summer’s busyness as one more symptom of the pandemic. Even more, all eyes will be on the Court’s new term that starts today—and blockbuster cases are coming fast.

Editor’s note: Suhr represented plaintiffs in separate litigation using a similar legal theory against the CDC.


Daniel Suhr

Daniel Suhr serves as managing attorney at the Liberty Justice Center. His clients include victims of cancel culture, parents seeking educational alternatives for their children, and citizens speaking up in the public square. Before joining LJC, he served as a senior adviser to Wisconsin Gov. Scott Walker and a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit. He is a member of Christ Church Mequon, an Eagle Scout, and a fair-weather runner. He’s married to Anna and loves building legos and watching Star Wars with their young sons, Will and Graham, at their home near Milwaukee, Wis.

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