Judge Amy Barrett and the Government's powers in a public health crisis

September 26, 2020 | Allan J. Favish

[AJFavish]

This topic really needs a much more detailed treatment, but I don't have the time. Here is the essence:

Judge Amy Coney Barrett concurred in an opinion in August 2020 entitled ILLINOIS REPUBLICAN PARTY v. J. B. PRITZKER, Governor of Illinois, which is here: https://www.politico.com/f/?id=00000174-572b-d057-a37d-7fef3ec60000, and which I will call the Pritzker case. In that case Gov. Pritzker's COVID-19 lock-down orders exempted religious activities from some of the lock-down requirements. For reasons I do not understand, the Republican Party of Illinois sued over the exemption given for religious activities. On pages 6-7 of the opinion, it discusses a 1905 United States Supreme Court opinion entitled Jacobson v. Massachusetts (https://supreme.justia.com/cases/federal/us/197/11/), which gave states great leeway in restricting personal liberty when fighting a public health crisis. In Jacobson, the issue was whether a person could refuse to get a smallpox vaccination. On page 7 of the opinion in which Barrett concurred, it states: "At least at this stage of the pandemic, Jacobson takes off the table any general challenge to EO43 [Pritzker's lock-down order] based on the Fourteenth Amendment’s protection of liberty."

Barrett has been criticized for concurring in the Pritzker case: https://bigleaguepolitics.com/judge-amy-comey-barrett-recently-approved-democrat-covid-19-lockdown-policies/

That criticism may be inaccurate, but maybe not. It is unclear what the judges in the Pritzker case meant when they stated "Jacobson takes off the table any general challenge to" the lock-down order. Perhaps they were only acknowledging that under some circumstances, state governments can restrict personal liberty when fighting a public health crisis. Or perhaps they were agreeing with the Jacobson opinion's great leeway given to state governments in such circumstances. That great leeway has been severely criticized as set forth in the opinion by Federal District Court judge William Stickman who recently ruled that Democrat Pennsylvania Governor Tom Wolfe's lock-down orders were unconstitutional. Read pages 11-17 of Judge Stickman's opinion here: https://drive.google.com/file/d/1FL3Y1kDPricSINHlym0lVIw9hdsvmZmx/view

The criticism of Barrett assumes that she believes that if a case like the Jacobson case should arise today, it should be decided exactly the same way as Jacobson was decided in 1905. The view taken by Judge Stickman and those he cites in his opinion appears correct ot me, although I have not fully researched the topic. I hope Barrett is asked about Jacobson and the points made in Stickman's opinion at her hearing.

[Pollard]

this will be fun

[exnavy]

This was the same thing that troubled me, “we the people” not we the government.

[fatman6502002]

She and her colleagues, as stated in the opinion were bound by Supreme Court precedent. Only the Supreme Court can change it’s own precedent, not District or Appeals Courts can do that. As always the solution to these problems is not to expect judges to change law to get to an outcome they desire, but rather it is for the people to elect candidates to their legislature’s to change the law if they don’t like it.

[romanesq]

Tell Judge Stickman in Pennsylvania.

Judge Stickman crushed the PA Lockdown to smithereens in a withering and brilliant legal decision.

He also last week slapped down the State of PA request for a stay on his decision.

The People of Pennsylvania have been crushed by the indiscriminate lockdown. Fully 68% of the deaths there are directly connected to senior facilities.

This is one of the most brilliant legal decisions I’ve ever read:

https://www.courtlistener.com/recap/gov.uscourts.pawd.266888/gov.uscourts.pawd.266888.79.0_1.pdf

[USCG SimTech]

1905 case president is not a God’s ruling in stone. There are many cases that were flat out wrong, Constitutionally, throughout history.

[tinyowl]

"As always the solution to these problems is not to expect judges to change law to get to an outcome they desire, but rather it is for the people to elect candidates to their legislature’s to change the law if they don’t like it."

Agreed and a rather good reminder for all the left but also many on the right. Actually it's only a reminder to people on the right. The people on the left should be forced to be vaccinated with that truth, as they are the real and present health crisis.

[AJFavish]

She and her colleagues, as stated in the opinion were bound by Supreme Court precedent. Only the Supreme Court can change it’s own precedent, not District or Appeals Courts can do that. As always the solution to these problems is not to expect judges to change law to get to an outcome they desire, but rather it is for the people to elect candidates to their legislature’s to change the law if they don’t like it.

I agree. But as seen in Judge Stickman's opinion, you can use Supreme Court cases that came after Jacobson, that used a different analytical model, to get a different result if Jacobson was decided today.

[ClearCase_guy]

My understanding is that Barret is an originalist with strong interest in stare decisis. I’m hoping that she will look at past precedent and have the guts to say “That’s a bad precedent. That’s not what the Founders wanted. We need to ignore that old decision, and decide our current case more correctly.”

[fatman6502002]

Different law for a different state, not certain the two cases are comparable. Maybe the laws Stickman used were not applicable to the Illinois law in question. I don’t know the answer to those questions.