Thursday, October 15, 2020


On the op-ed page of The New York Times, John Fabian Witt, a law professor at Yale, writes about the way Republican-leaning justices are rejecting hundreds of years of U.S. jurisprudence on the subject of public health.
For centuries, American constitutional law granted state governments broad public health powers. “Salus populi suprema lex,” the old saying went: The health of the people is the supreme law. Such authority went back to the beginning of the Republic. In the famous 1824 case of Gibbons v. Ogden, Chief Justice John Marshall defended the “acknowledged power of a State to provide for the health of its citizens.” States, he explained, were empowered to enact “inspection laws, quarantine laws” and “health laws of every description.”

Lemuel Shaw of Massachusetts, who was arguably the most respected state judge of the 19th century, supported vast public health powers and described states’ authority to control epidemics as central to the sovereign power of government. The Alabama Supreme Court agreed, citing the old dictum of salus populi, and courts in states like Georgia and Louisiana followed. In New York, the state’s highest court upheld disruptive health regulations like a ban on burials in urban church cemeteries.
And so on -- until now:
Today, however, the tradition of salus populi is in collapse. In state and federal courts alike, Republican-appointed and Republican-elected judges are upsetting the long-established consensus.

This month, a bare majority of four Republican-appointed justices on the Michigan Supreme Court struck down the state’s 75-year-old emergency powers law as an “unlawful delegation of legislative power to the executive.” ...

Last month, a federal district judge in Pennsylvania appointed by President Trump struck down the state’s business closure rules and its limits on gatherings....

And back in the spring, four justices connected to the Republican Party on the Wisconsin Supreme Court overturned their state’s common-sense emergency Covid-19 rules over the dissents of three colleagues.

The U.S. Supreme Court threatens to get into the action, too. In May, four conservative justices (Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) dissented from an order in South Bay United Pentecostal Church v. Newsom allowing California’s Covid-19-related restrictions to remain in place for gatherings at places of worship. Then, in Calvary Chapel Dayton Valley v. Sisolak, decided at the end of July, those same justices dissented from a similar order leaving Nevada’s restrictions intact.
Professor Witt sees racism at work.
In the past, when epidemics have threatened white Americans and those with political clout, courts found ways to uphold broad state powers. Now a new generation of judges, propelled by partisan energies, look to deprive states of the power to fight for the sick and dying in a pandemic in which the victims are disproportionately Black and brown.
I believe race is a factor -- but I think these judges are corporatists more than racists, and, as soldiers in the right's ideological war against lockdowns, they're perfectly willing to sacrifice the lives of (non-elite) white people. Note, for instance, that this is happening in Wisconsin, which is 87% white. While it's true that the pandemic has disproportionately affected non-whites in the state, 72.5% of the infected and 76.8% of those who've lost their lives to COVID-19 are white. And the GOP justices on the state Supreme Court don't care.

They don't care because the decades-long conservative assault on our judiciary is the work of the Koch brothers and similar ideologues. They believe in business over all other considerations; they want the economy to keep running no matter how many people die, and they want as little government spending as possible directed to ordinary Americans.

Many of our corporate overlords are known to believe that if damaging the health of the public is profitable, they should continue to do it until they're caught, and in the meantime they should lobby to ensure that any fines for such behavior won't be a serious drag on profits. This is sociopathy as best practice. The political party these plutocrats favor agrees with this approach -- and so do the judges that party chooses. During a deadly pandemic, Kochite Republicanism kills.

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