Live teleconference oral arguments have been the most visible sign of the impact of the COVID-19 pandemic on the Supreme Court, and they have prompted copious coverage and commentary. However, the justices have also been busy with a steady flow of cases arising from the pandemic, mostly in the form of emergency stay requests.

These COVID-19-related cases have covered a broad array of important rights and liberties, from voting practices to abortion services to immigration issues to prison conditions, and they have forced the justices to tackle the difficult health and safety issues facing the nation. In some cases the justices have taken no action, in some they have issued a brief order and in a few they have written opinions. Some actions have been unanimous; others have divided the court.

The most recent case to reach the court involved the exposure of inmates in a Texas geriatric prison to the COVID-19 virus. Inmates sued the prison alleging that officials took inadequate measures to protect them from the virus. In April, a federal district judge issued an injunction ordering the prison to take steps to protect the inmates from the spread of COVID-19. But a panel of the U.S. Court of Appeals for the 5th Circuit temporarily blocked the injunction with a stay pending appeal. In Valentine v. Collier, the Supreme Court on May 10 issued a two-line order, rejecting a request by the inmates to allow the health and safety measures to take effect during the appeal.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a seven-page separate opinion. Although Sotomayor said the 5th Circuit’s stay was likely correct because the inmates did not take all necessary steps under a federal law passed in 1995, the Prison Litigation Reform Act, she added that federal courts “do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death.” She said that inmates and guards at the prison in Grimes County, Texas, recently tested positive for COVID-19. In this pandemic, she noted, “inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.” Sotomayor did suggest some possible actions to help the inmates: for example, seeking new relief in the district court because of changes in the prison situation, or prison officials taking the initiative to spread out the inmates into unused spaces to reduce exposure.

One of the most visible disputes related to the pandemic was the fight over absentee ballots in the Wisconsin primary held on April 7. The case of Republican National Committee v. Democratic National Committee split the justices 5-4. Because of the pandemic, a federal district judge in Wisconsin ordered state election officials to accept absentee ballots for an additional six days, even if they were postmarked after election day. The order was intended to cut down on the number of people who would have to go to polling places on April 7 by giving voters more time to send in absentee ballots. The Republican-controlled state legislature and the Republican National Committee appealed the order, and the U.S. Court of Appeals for the 7th Circuit left the judge’s ruling in place.

Republican officials then requested, and on April 6 were granted, a stay from the Supreme Court, reinstating the requirement that absentee ballots be postmarked by April 7. The unsigned, four-page majority order faulted the district judge for interfering so close to the election and for ordering an extension for absentee ballots that went beyond what was requested by the voters and Democratic officials. The majority stressed that it was deciding a narrow issue and expressing no view on whether the election should be postponed “or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.”

Ginsburg was joined in dissent by Sotomayor and Justices Stephen Breyer and Elena Kagan. Her six-page dissent disputed the suggestion that the ruling was a narrow one. “The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” Ginsburg wrote. Under the majority’s decision, she said, many voters would either have to forfeit their right to vote or go to polling places at risk to their own health and that of others in line.

Although stay-at-home orders have been contentious in many parts of the country, the Supreme Court has only had a direct look at one such fight, the order issued on March 19 by Pennsylvania Governor Tom Wolf. Wolf ordered many businesses to close in March and granted waivers by application to some companies until April 3. A number of businesses sued to challenge the governor’s order, arguing that they had been denied due process and also had their property effectively taken by the state without compensation. The Pennsylvania Supreme Court rejected their claims. On May 6, the U.S. Supreme Court refused to grant a stay without comment and with no recorded dissent. A petition for certiorari has also been filed and is still pending in the case, Friends of Danny DeVito v. Wolf.

The divisive issue of access to abortion during the pandemic also reached the Supreme Court, but the justices took no action in the case, and it was resolved in the lower courts. On March 22, Texas Governor Greg Abbott ordered that surgeries and medical procedures be halted in the state if they were not “immediately medically necessary.” The next day, Texas Attorney General Ken Paxton issued a statement that said abortions should be among the procedures that were halted unless they were necessary to preserve the health or life of the woman.

In a lawsuit filed by abortion clinics, a federal district judge in Austin blocked the state multiple times from enforcing the ban and said abortion services must be allowed to continue. The case ping-ponged between the district court and the U.S. Court of Appeals for the 5th Circuit, which repeatedly overruled the district court’s orders. The clinics went to the Supreme Court for an emergency order to allow abortions, but before the justices took any action, Abbott modified his original order on April 17 to allow some abortions; the governor’s ban expired on April 21. With the issue resolved, the Supreme Court had no reason to act.

Two other COVID-19 related filings in the Supreme Court involved immigration concerns. In one case, the justices refused to alter their earlier stance allowing the Trump administration to enforce its definition of the “public charge” rule, an immigration law that allows the government to deny a green card to an immigrant who the government believes will be dependent on government assistance programs. The Trump administration’s definition of the rule – identifying a public charge as a person who uses government benefits, including health care, for 12 months in a three-year period – was blocked by federal district courts. But the Supreme Court in January, split 5-4, issued a stay allowing the Department of Homeland Security to enforce the rule while appeals are pending. When the pandemic hit, New York and other states challenging the Trump administration’s rule went back to the Supreme Court in April. Arguing that the rule would discourage immigrants from seeking medical care for COVID-19, they asked the justices for a stay to temporarily block the rule. On April 24, the justices, with no recorded dissents, denied the states’ request.

Another immigration case involved the status of the Deferred Action for Childhood Arrivals program. The program, implemented by President Barack Obama in 2012, provides temporary protection from deportation and an opportunity to work for some 700,000 persons who were brought to the United States as children without proper legal documentation. The Supreme Court heard arguments last November on the legality of President Donald Trump’s cancellation of the program, and that decision is still pending. On April 20, however, the justices accepted an additional brief arguing that allowing cancellation of DACA during the COVID-19 crisis would severely hamper the fight against the pandemic because there are 27,000 DACA beneficiaries who are frontline health care workers. The fact that the brief has been filed does not indicate what, if any, influence it may have on the justices.

As the country continues to wrestle with COVID-19, it is likely that more requests for emergency action in cases related to the pandemic will make their way to the Supreme Court.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: COVID-19 and Supreme Court emergencies, SCOTUSblog (May. 19, 2020, 2:45 PM), https://www.scotusblog.com/2020/05/scotus-for-law-students-covid-19-and-supreme-court-emergencies/