Eric Posner and Kenny Mok, '21, Explain Their Finding of Partisanship Among Judges in Legal Challenges to COVID Orders

In emergencies, judges usually defer to politicians. Not during the pandemic.

Like the slaying of Samuel Ratchett in Agatha Christie’s “Murder on the Orient Express,” the botched American response to the coronavirus pandemic is the work of a large cast of characters — from federal agencies to the White House to certain governors. So far, the courts have largely escaped public opprobrium. But a review of their decisions suggests that the judiciary deserves a share of the blame — for interfering with legitimate public health policies and using the pandemic to score points in the culture wars.

Unhappy with lockdowns, mask requirements, vaccination mandates and other measures, Americans did what Americans do — they sued. Plaintiffs in these cases were “nonessential” businesses whose operations were shut down or restricted; religious organizations who were told to close or limit attendance in houses of worship; politicians and activists whose campaigns were restricted; landlords whose evictions were suspended; and ordinary citizens whose commercial, political or personal activities were burdened by mandates of various sorts. Every imaginable constitutional theory was advanced, including claims that the orders violated property, religious, speech, gun and abortion rights, rights to travel and choose one’s profession, and rights to equal protection and due process.

To determine how often plaintiffs were successful, in a recent paper we examined more than 150 federal cases involving nonreligious civil liberties challenges to coronavirus-related public health orders, from March 2020 through June 2021. Our findings supplement work by another legal scholar, Zalman Rothschild, who has examined an additional 38 cases involving challenges to coronavirus policies based on religious rights.

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