Revisiting Jacobson

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Ryan Lacey:  Welcome to The Federalist Society’s virtual event. This afternoon, April 7, 2022, we discuss revisiting Jacobson v. Massachusetts. My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our experts on today’s call. Today we are fortunate to have two excellent speaker who are -- who I will introduce very briefly.

 

First, we have Professor Josh Blackman. Professor Blackman is a Professor of Law at the South Texas College of Law Houston. He’s also an adjunct professor at the Cato Institute and the president of the Harlan Institute. Our second speaker is Professor Sanford Levinson. Professor Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and a Professor of Government at the University of Texas at Austin School of Law. He was previously a member of the Department of Politics at Princeton University and is a professor in the Department of Government at the University of Texas. Levinson is the author of approximately 400 articles, book reviews, and commentaries in the professional and popular journals. After our speakers give their remarks, we will turn to you, the audience, for questions.

 

If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of today’s program. With that, thank you for being us today. Professor Blackman, the floor is yours.

 

Prof. Josh Blackman:  Thank you so much. It’s a pleasure to be with The Federalist Society and my distinguished colleague, Sandy Levinson. We recently had at UT this -- supposed to be in honor of Sandy’s career, a Levinson Fest. Was that what it was called, Sandy?

 

Prof. Sanford Levinson:  Yeah.

 

Prof. Josh Blackman:  And I think it’s just a testament to the range of issues on which Sandy can speak, which is virtually anything. So I’m really grateful that he’s here with me today. So let’s think back in time to a time we were all in existence, January of 2020. It was a very different time. We had heard rumors of this coronavirus, but it was something strange in a faraway land. We had never worn an N95 mask. We had never heard of the term, “social distancing.” Zoom was something you did with a lens. The only curves we tried to bend were supply curves. And none of us had any clue who Anthony Fauci was. Things were simpler back then.

 

In January of 2020, no one could have imagined that the government would order millions of people to stay in their homes on penalty of arrest. No one could have fathomed that state governments would erect checkpoints at borders to deny entry to out-of-staters. No one could have predicted that entire economic sectors would be forced closed because they were deemed nonessential. No one could’ve dreamt that houses of worship would be shuttered as nonessential services. January of 2020 was a very different time. But, in the span of days, all these changes would happen with little deliberation, and undergirding virtually every aspect of these radical changes was a precedent.

 

Jacobson v. Massachusetts, 1905 case, became the fountainhead of pandemic-era jurisprudence. I recently wrote a very long article about Jacobson called, “The Irrepressible Myth of Jacobson v. Massachusetts.” I can’t even pretend to summary everything here, but I’ll tell you, if you have a few minutes or a few hours, perhaps, take a look at my article. But my goal here is to discuss, not necessarily what did Jacobson mean when it was decided, but how Jacobson came to evolve during the COVID-19 pandemic. In very short order, Jacobson was used to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. And more recently, Jacobson has been used in a context of vaccine mandates, both by the state government as well as the federal government with respect to certain federal employees.

 

Now, I hope, as we sit here in April of 2022, that the pandemic is slowly coming to an end. But this 1905 precedent, Jacobson, still retains this central place in our constitutional discourse. But what exactly did Jacobson say? Justice John Marshall Harlan I wrote the majority opinion, and the only question presented in the case was whether the state could impose a nominal fine on a person who refused to be vaccinated. That was the issue presented. Yet, over the past two years, judges have followed a variant of Jacobson that is far removed from this Lochner-era decision. And I think the Supreme Court is largely to blame for these departures from precedent. Over the course of a century, four prominent jurists established what I call, “the irrepressible myth of Jacobson v. Massachusetts.” And this myth has four levels.

 

The first level was layered in 1927. It came in a very famous case called, Buck v. Bell. In this case, Virginia had enacted a eugenics law, which allowed the state to forcibly sterilize so-called imbeciles. And I use these, the air quotes, quite deliberately. The majority opinion was written by Justice Holmes. It was a very short opinion, and it used language such as “three generations of imbeciles are enough.” It was a very callous decision in many regards.

 

But one of the leading authorities in Jacobson -- I’m sorry, in Buck v. Bell was Jacobson. Okay. Holmes wrote, “The principle that sustains compulsory vaccination, from Jacobson, is broad enough to cover the cutting of the fallopian tubes.” In other words, if we can forcibly jab a person in the arm with a smallpox inoculation, then why can’t we simply cut a woman’s fallopian tubes to prevent her from sterilizing and creating burdens for society. But, here, Justice Holmes recasts Jacobson’s limited holding. Jacobson did not involve a law involving compulsory sterile -- compulsory vaccination. In fact, if you read the decision from the Massachusetts Supreme Judicial Court, it says very clearly that the case did not involve compulsory vaccination. People had a choice, if you will. They could pay five-dollar penalty or get vaccinated.

 

In some regards, there’s overlap with Chief Justice’s Obamacare decision: pay a small noncourse of fine or choose to get the vaccination. I suspect a lot of people today would simply choose to pay a five-dollar penalty or losing their job or anything else by not getting vaccinated. But Justice Holmes recast Jacobson or used a phrase, “recon,” if you will. And in a single sentence, Holmes expanded a scope of Jacobson beyond its narrow confines to support forcible intrusions onto bodily autonomy. Okay. So that was the first case, the first layer of the myth from Buck v. Bell. And by the way, Buck v. Bell is still cited by cases today.

 

People think, “Oh, it’s this anti-canon case.” It’s still cited. There are cases which involve — I’m not joking you — prisons that nudge people to go under sterilization procedures by perhaps being less than honest, and the prisoners bring suit under 1983 or Bivens or any of the other remedies, say that their constitutional rights were violated. And to this day, courts still cite Buck v. Bell for the proposition that the state has this broad power to sterilize people, to reduce the burden they might impose on society by procreating. So Buck v. Bell’s still good law and this sort of incorporation of Jacobson into that regime is also good law. So that’s the first layer: Buck v. Bell.

 

The second layer came in the 1960’s during the Warren Court. It’s a case, which I’m sure many of you are familiar with, Sherbert against Verner. This was a landmark free exercise case where the Court, more or less, would use something like strict scrutiny to review neutral laws that burdened religion. Sherbert is controversial today because of Employment Division v. Smith. In this famous case, Justice Scalia, more or less, either overruled Sherbert or really limited Sherbert to a very narrow set of facts. Today, many conservatives want to review burdens on religion with strict scrutiny. But, back then, it was the liberal line.

 

It was William Brennan who pushed this policy. But I’m not here to talk about the Free Exercise Clause. Instead, I want to talk about the reasoning in and Sherbert. In Sherbert, the court made a very peculiar move. Sherbert was a free exercise class. By contrast, Jacobson was a substantive due process case. It was decided a few months before Lochner. These were decided in a year where the Court looked at the Due Process Clause to find these sort of substantive rights.

 

A related case is where Meyer against Nebraska, Pierce v. Society of Sisters, where the Court used this so-called substantive due process to protect certain laws and to say the government’s -- protect certain rights and say that laws were unreasonable. And then, a funny thing happened in the 1930s, ‘40s, ‘50s, and 60s. The Court moved away from substantive due process, in cases like West Coast Hotel v. Parrish. And the Court began to say, “We are not going to be in the business of substantive due process anymore.” Ferguson v. Skrupa and other cases put that nail in the coffin. And then, we get to Griswold v. Connecticut, the famous contraception case, where the Court, depending how you read it, more or less, reanimated substantive due process, were looking up numbers of the Bill of Rights and these sorts of other phrasings.

 

But Skrupa was decided in 1963. Right? Skrupa was still in the era of Ferguson v. Skrupa before the Court gave substantive due process another look. And Justice Brennan was discussing these rights of free exercise. But, then, he had to account for Jacobson. Right? How do you account for a substantive due process case when you’re still under this sort of New Deal settlement? So what Jacobson did -- I’m sorry. What Brennan did was, basically, recast or rewrite Jacobson as a free exercise case. Right? Brennan said that Jacobson is an example about the state being allowed to violate religious beliefs. Right?

 

Jacobson had nothing to do with free exercise of religion. It’s true that Henning Jacobson was a minister. He was a Swedish Lutheran minister. But the case had nothing to do with free exercise of religion. But in Jacobson -- I’m sorry. But, in Sherbert, the Court effectively treated Jacobson as a free exercise case, which is very hard to do because at the time Jacobson was decided, the First Amendment had not even been incorporated yet, wouldn’t happen for several decades.

 

But, in the process, Brennan suggested that the usual Free Exercise Clause jurisprudence would not apply during a public health crisis, and this became important during COVID. During COVID, all these courts began to say that, in times of public health, the usual free exercise rules do not apply. Instead, Jacobson applies. And this reasoning can be traced during back to Sherbert v. Verner and Justice Brennan. Okay? That’s level -- that’s layer number two.

 

The third level came in a case from 1973, just past 50 years old. You may have heard of it. It’s a pretty important case. It’s called Roe v. Wade. Yes. Roe v. Wade. In a row, Justice Harry Blackmun — no relation — recognized a substantive due process right to terminate a pregnancy, but the Court did not recognize an unlimited right to with one’s body as one pleases. Instead, Justice Blackmun identified limits on this right.

 

And Blackmun cited two cases to support these limits. The first case is Buck v. Bell. Right? The notion that the state has the power to forcibly sterilize you, then presumably the state can also force a woman to carry a child to term. But the other case cited was Jacobson v. Massachusetts, the idea that, if we can forcibly sterilize you, then we can also forcibly require a woman to carry a child to term. Again, here Justice Blackmun expressively adopts Holmes misreading of Jacobson from Buck, and, in the process, Justice Blackmun incorporated Jacobson into the Court’s modern, substantive due process framework, even though Jacobson predated modern [inaudible 13:22] by decades, a road to something else that was not appreciated until the pandemic. During a health crisis, the state has extra powers to restrict abortions.

 

During the pandemic, we actually saw that Courts upheld abortion restrictions, citing Jacobson and Roe, saying, “Look. Roe favorably cited Jacobson, therefore, in a substantive due process challenge during a pandemic, the governing framework is not Roe and Casey, but it’s Jacobson.” These sort of little citations have significant consequences, and the cavalier attitude by which the Court cited these cases made a huge difference during the pandemic. Now, most people do not include -- most law students who read Roe v. Wade skip over this part. In fact, most constitutional law case books don’t include the citations to Jacobson and Buck. In fact, the book I’m part of, the Barnett/Blackman book -- it didn’t, and I asked Randy to do it, and he agreed. I don’t know if Sandy’s book includes it, but a lot of case books exclude this point, but it’s important that Roe expressly cited the Jacobson case. Okay. That’s level three.

 

Level number four is more recent vintage. It’s just about two years old. And the case I speak of is South Bay United Pentecostal Church v. Newsom. This was one of the Supreme Court’s first COVID cases on the so-called shadow docket, this insidious, nefarious, ether real jurisprudential miasma, whatever you want to call it. Right? The shadow docket. Right? They’re all scared of it. Right? This was the first major shadow docket case.

 

California imposed very strict regulations on houses of worship during the pandemic, so even a house of worship that might see a thousand people was limited to ten people. A number of groups brought suit under the Free Exercise Clause. The lower court ruled in favor of the state. And then, the case, it appealed to the Supreme Court, and the religious groups seek a -- an emergency injunction to block the enforcement of the COVID measure. The Court split 5-4 on this issue. Chief Justice Roberts, with a time -- no longer -- for the time, was the swing vote, cast the siding vote. The Court split 5-4, and the Chief Justice wrote an influential concurring opinion, which, effectively, said — and I’m just going to paraphrase — the Court should not -- the Supreme Court should not be involved in second guessing the government during the pandemic.

 

And Roberts included a very important citation. He cited Jacobson. This was not missed. Roberts wrote that, “Our Constitution principally entrusts the safety and health of the people to the politically accountable officials of the States to guard and protect.” This was all the low courts needed to hear. It was just a concurrence, but the shadow docket case was treated as if it was gospel, and over the following six months, by my count at least, more than 140 lower court cases cited this solo opinion, and 90 of those 140 cited Jacobson. Now, it isn’t clear that Chief Justice Roberts intended to adopt Jacobson’s constitutional analysis as a general rule to review all pandemic measures, but Roberts established this fourth layer of the myth, that in any pandemic challenge, Jacobson level was warranted.

 

And the lower courts follow the Chief’s signal. They applied in the context of abortion, in voting rights, in religion, in gun rights, in the right to travel, a case involving employment benefits, a workplace termination. Every context you can imagine, it was Jacobson, Jacobson, Jacobson, over and over and over again. Now, in theory at least, the South Bay precedent or the super precedence — I call it — lasted barely six months. After Justice Ginsberg’s passing, Justice Barrett was appointed to the bench, and she cast the fifth and decisive vote in Roman Catholic Diocese of Brooklyn v. Cuomo. This opinion didn’t formally reverse South Bay, but it’s very difficult to reconcile South Bay and Jacobson both with the change of the Court. More recently, Justice Barrett’s been very critical of the shadow docket, and I really wonder whether she would have cast the vote in the Diocese’s case as she would have been she joined the bench back in November of 2020. But it’s impossible to know.

 

But, at least, in Roman Catholic Diocese and other cases like Tandon v. Newsom, the Court’s followed traditional first amendment doctrine and did not rely on Jacobson. Right? But the Court didn’t overrule Jacobson. Justice Gorsuch would have, but, as oft is the case, he votes by himself. No one else was joining his opinion. So that background, I think, brings us to the topic of today’s symposium, and I’m actually thrilled to see over a hundred people in a Zoom room on a Thursday, talking about Jacobson v. Massachusetts. And I’ll put a link — or I think someone asked me — of my article. I’ll put a link in the chat so you can all download that and choose my SSRN rankings. Here you go. Guess the paper’s right there.

 

So, now, we come to the thrust of today’s paper. Right? The thrust of today’s topic, should Jacobson be overruled? And I think it’s somewhat of an unfair question. There’s nothing wrong with the Jacobson precedent in the abstract, if you actually read what it says. In fact, I think I agree with Harlan on this one, even though I don’t necessarily would agree him on Lochner, but I think I agree with him here, at least. At the time, the idea of compulsory vaccination was very controversial, and the state chose to very deliberately adopt a regime that would allow people to basically pay a small criminal penalty, five dollars, or choose not to be vaccinated.

 

Just a funny story, if I may. Jacobson had been vaccinated earlier in life and had an adverse to it, so this is a vaccine that only lasted for a brief period of time. While he was on bail, basically, in other words, after he was convicted before the Supreme Court decided the case, he was free to move around. He participated in high society. He would speak at banquet dinners, where the governor was there, where the senators were there, where the state reps were there. In fact, the city of Boston sent him on a delegation to the World’s Fair in St. Louis to represent the city of Boston.

 

So, even as he was this Typhoid Mary, this character who was unvaccinated, he was able to do everything he wanted. So I think the actual case itself is far narrower than people give credit for. The $5 penalty spent $140 in present-day value; that’s like a parking ticket. And I actually checked the entire Cambridge Health Code, the entire Massachusetts Health Code, and five dollars is the lowest penalty imaginable. So I think that Jacobson staying by itself doesn’t necessarily need to have a rule, but I think we need to take stock of what it does say and what it doesn’t say. Right?

 

So the first clarification I want make to the jurisprudence is that Justice Holmes was wrong. He was wrong. Jacobson should not be used in cases involving intrusion upon bodily autonomy, this -- the thing where you force someone to get a shot. Right? You might think of the Cruzan case and others, where you’re basically forcing people to receive life-sustaining treatment. Jacobson’s not your case. Right? If you want to establish that as a modern -- as a matter of modern jurisprudence, you can do that. The second thing I would hope the courts clarify and say with some clarity as well is that Jacobson is not the relevant precedent for enumerated powers cases. Jacobson arose as a substantive due process case, even before that label existed.

 

But Jacobson is not a really good fit for cases involving enumerated rights: the First Amendment, free speech, free religion, and also the Second Amendment. During the COVID -- during the pandemic, there were a lot of protest case. People want to publicly demonstrate. And some courts actually cited Jacobson, saying, “No. Your rights of free speech are limited during the pandemic.” And I think that’s just nonsense. The framework for Jacobson originally have no bearing on enumerated rights, like a Free Speech Clause, Free Exercise Clause, and the Second Amendment. I’ll talk about guns briefly because this is a weird argument. But, during the COVID pandemic, many governors shut down sales of gun stores.

 

They deemed them nonessential. So you have this constitutional right to bear arms, but you have no means to actually acquire those arms. And a couple courts actually held that you cannot completely shut down the right -- the only means of acquiring a firearm during a pandemic and that Jacobson was not the -- not a valid method. Connecticut tried to get creative. In Connecticut, to buy a gun, you have to be fingerprinted. So Connecticut said, “Okay. No fingerprints because touchpoints. Right? We’ll just prevent you from getting fingerprinted.”

 

And a district court judge in Connecticut actually issued an injunction, saying, “No. That’s privilege. You can’t deny people the right.” So, again, Jacobson showed no bearing on enumerated powers cases. And then, we get to substantive due process, and here, too, I think you have to be very careful when you take language in Jacobson out of context. When a judge in 1905 said something was unreasonable or arbitrary or oppressive, those words had different meaning than they would today and perhaps, the Administrative Procedure Act and other sorts of modern regimes. I think judges should be very careful before you lift language from a 1905 decision and treat that as if it’s entirely consistent with modern SCOTUS precedent. Right? It could be that an abortion restriction during the pandemic is subject to, not the Casey standard, but something more deferential.

 

But I really think judges need to be careful, saying, “Well, let’s just quote Justice Harlan and ask if that test is satisfied.” There’s been a hundred years of jurisprudence that obviated those cases. Okay. Now, let me come to my big finish. I’ll turn it over to Sandy in a moment. I think the COVID case has taught us that the courts simply are not equipped to resolve these issues. They move too slowly. Facts were changing on the ground very quickly.

 

There was a different variant coming out, this statistic, that statistic. Right? Things were moving very quickly, and the courts simply were not to snuff. Now that, God willing, everything slows down and pandemic hopefully comes to an end soon, I think legislators need to become more considerate. They need to address issues, such as when a governor declares a state of emergency, how long can that emergency last for? When a governor issues some sort of public health order, is there a sunset period? I think of the War Powers Resolution, where governors are basically issuing orders two years at end without any legislation check.

 

Even New York, the Empire State, imposed limits on Governor Cuomo’s powers because they found he had exercised them too broadly. Some say it should be even going even further in that they’re stripping their governors from the power to shut down certain services. So I think the Kentucky Legislature just enacted a law that says the governor cannot close a house of worship unless there’s some very clear reason why the house of worship is different than other businesses of special justification. Other states enacted laws involving guns. For example, during a pandemic, gun stores cannot be closed. These laws actually arose during Hurricane Katrina.

 

You might remember the mayor of New Orleans basically went door to door, seizing firearms from people and various other government officials. So a number of states were looking at laws that prohibit governors from shutting down gun purchases during some sort of public health crisis. So I think the sort of long and short of it is that Jacobson’s been very badly misread. Lower courts have been — sorry to say — a bit lazy, just reading an opinion 1905 and just assuming that this is valid law without really accounting for how it’s developed. And I think both Congress and state legislators should be more careful now that the pandemic’s subsided to figure out what sort of scope of power is appropriate. And I think we can ever really rely on the courts in emergencies to become -- to provide sober analysis one way or the other.

 

They’re moving quickly. Right? They’re making decisions. Things change on the fly. I would hope that legislators can perhaps do a better job, and we’re not looking to Justice Harlan’s ghost from 115 years ago to resolve these issues. That’s all I have. I’m grateful for your attention, a hundred people here. It’s lovely to see you all on Zoom, and I’m hopeful to hear my good friend Sandy has to say.

 

Prof. Sanford Levinson:  Great. I, too, am grateful for this invitation, the opportunity to talk about Josh’s really interesting, but — for reasons I’ll get into — slightly perplexing, article. First of all, I think it does a terrific job of excavating Jacobson and demonstrating that it has been expanded beyond what a careful reading of Harlan’s opinion in 1905 might lead you to think it stands for. So from one perspective, I think Josh’s article is a fascinating essay, simply in the legal process as it actually happens. Now, I don’t know whether he and I would disagree on this at all. I don’t see anything special in Jacobson. In reading the article, I found myself thinking — and maybe this reference is more for people my age than the age of many people tuning in — but the line from Casablanca, where surprise and shock is expressed at the fact that there is gambling going on in Casablanca, during World War II. The reason that is just a great and memorable line -- it’s partly because Casablanca is a truly remarkable movie but also because it captures so perfectly this sense of faux naivety, when we know what is going on, and it does, in fact, run contrary to the letter of the law, where some model we have of what genuine intellectual integrity might require but, nonetheless, is going on.

 

So I would say that the Supreme Court or courts, in general, for a variety of reasons, are generally unreliable narrators with regard ire to facts or the law. A major reason is that all legal practice involved motivated reasoning. Obviously, when lawyers write briefs, they are not pretending to be academics or Dworkinian, who are simply trying to figure out exactly what the truth is and then to feel bound by it. No. Properly so, advocates advocate, and what that means, going back to the critique of sophistry and Plato’s Gorgias, is that you tried to mold the fact and mold the law to fit the interests of your client, classically, to make the lesser argument appear the greater. That’s just what lawyers do. Now, is it really any different when lawyers become judges?

 

I’m both a lawyer and a political scientist, and, so, one way I respond -- well, I respond to Josh’s article, wearing both hats. As a lawyer, I think it’s a superb article, and I do think he makes his argument very successfully, that Jacobson has undergone some quite remarkable transformations over time. As a political scientist, I say, “I just find nothing unusual about this.” I would go back to oldest chestnut of them all, that is Marbury v. Madison. And one could easily write an essay called, “The Irrepressible Myth of Marbury v. Madison,” in terms of how that case has been cited by future courts. First, it was cited for decades because it was correctly viewed as a quite trivial case.

 

And then, in the 20^th century, it becomes very important. In the mid-20^th century, the Supreme Court starts citing it, completely invalidly, for the proposition that the Court itself is “the ultimate interpreter” of what the Constitution means. I suspect that both Josh and I agree in disagreeing with that picture of Marbury, but we could on and on and on with regard to the distortions that takes -- that take place and, partly, because of motivated reasoning. But I also think that Josh is on to something very important, that one doesn’t have to castigate the judges necessarily for being, if you will, dishonest or the like. It may be that laziness describes it. I think one also, frankly, has to include the role of law clerks and legal education.

 

My hunch is that most judges have not gone back to read Jacobson, that clerks will write memos and argue that the result you want is supported by these precedents. In fact, I think we’re all familiar with anecdotes, at least, in which Supreme Court judges or other judges will say, “This is how I would like to come out. Can you write me an opinion that gets there?” Now, every now and then, a clerk might have to announce to a judge that, “You can’t get there from here,” that “The precedents are just so solidly against you, you can’t get there,” or “What part of two do you not understand?” If like me, one loathes the idea of equal representation in the Senate, but, as terrible as it is, I don’t think it’s unconstitutional because two means two in our pragmatic world. So I think that it is overdetermined that Jacobson takes on the life that Josh describes. And if one is a certain kind of intellectual purist, and I don’t use that term pejoratively, then I think one can share the sense of near outrage at the distortions.

 

But, then, what I find truly perplexing about the paper is what Josh thinks the pay off of the paper is, other than recognizing that judges and their clerks and lawyers engaging in advocacy have played fast and loose with Jacobson, just as they play fast and loose with every precedent that might be thought to be relevant. And then, I go to the very end of his very long paper, which I’m very glad to say that I have read, he says on page 208 -- it concludes on page -- I’m sorry -- 268, “I suspect these cases would have come out the exact same fashion, even if Jacobson had never been decided. Judges of all stripes have a natural tendency to exercise restraint in time of crisis.” And then, on page 269, he says, “The actual facts of holding in Jacobson had little impact on how judges viewed the venerable ink blot.” I think he’s right. I think that this -- we could get into a very different discussion in a very different program about any of the particular methods of -- or so-called methods of constitutional interpretation.

 

Both of us are aware, I’m sure, of the critique of originalism that has often been asserted that you go to a cocktail party and look for your friends and then cite it. The same thing is true, of course, of precedence of everything that lawyers do. So, if this particular friend didn’t show up and, in fact, had been banished from the community for having done something really terrible, would it change the overall law as an empirical matter? And then, as a normative matter, should it change? I’m not sure, at the end of the day, where Josh comes out on the degree to which a once-in-a-century public health disaster, a true emergency, by any definition. How that should be processed by judges, in particular, who are presented with — let us, at least, I hope, agree — would be moderately thoughtful decrees by legislatures or governors or city executives.

 

I don’t have to say they were fully thoughtful in terms of some maximum notion of thoughtfulness, but I don’t think they were whimsical. I think that they represented good faith efforts by honorable people — some of whom I agreed with, some of whom I disagreed with — to figure out what do you do when presented with this kind of emergency. And one thing to do is to say, as Josh recognizes, is that judges generally should be restrained, unless they see some edict and say, “First of all, this is in bad faith. You’re going after religion and only religion because you don’t like religion.” And I would agree that that should be struck down, even in times of emergency, if there is good reason to believe that you’re simply picking on a religious sect you don’t like. But maybe this is the devil quoting scripture, but Justice Scalia was onto something in the Smith case where he said that “neutral laws of general application should be enforced by a restrained judiciary,” because judges really don’t know all that much, and these sorts of decisions are, by and large, given to legislative and, even, executive agencies. As I say, I detect an ambivalence in this paper.

 

One of the things I find so interesting about The Federalist Society, quite frankly, is that its original hero was Robert Bork. And Robert Bork criticized Holmes’ opinion in Lochner, not because it acquiesced to the maximum hours decision of New York, rather he criticized it because Holmes went to far as to suggest, “Well, under some circumstances, a court might intervene and strike something down, if it violates the settled traditions of free people,” or whatever particular jargon he used. So, when The Federalist Society was first getting started, its mantra was judicial restraint, and Robert Bork was the hero of the hour. Today’s The Federalist Society, I think, is more in the grip of what has come to be called, “judicial engagement.” Now, if you don’t agree with the particular notion of judicial engagement that our mutual good friend, Randy Barnett, would suggest, you would call this old-fashioned judicial activism. And we could have an endless debate about what forms of activism are justified and what forms are not. But I do think that this paper does capture that kind of tension because I don’t see in the paper a view that courts really ought to be vigorous in striking down what we would regard as reasonable regulations during a time of general public health emergency.

 

So, ultimately, I think the case that ought to be in Josh’s scope is Blaisdell, that -- a case I love to teach because it has two of the greatest opinions in our history, that is Chief Justice Hughes’ opinion for five judges, upholding the Minnesota Moratorium as an emergency measure, and a great dissent by Justice Sutherland, saying that “even a time of  emergency won’t justify relaxing the mortgage rules.” And what Hughes says, of course — and I teach this quite skeptically — is that “emergency doesn’t create power; it simply provides for the exercise of powers that are already latent in the Constitution.” So I think part of what we might argue about is the extent to which some of the measures taken, with regard to COVID, are simply exercises of constitutional power that are already there but have not been done before because we haven’t had something exactly like COVID or whether the Court is just making it up and unduly acquiescing to legislative or executive overreach.

 

Josh says it’s very important to distinguish between enumerated prohibitions and the unenumerated limitations. Quite frankly, I don’t share the view that that’s a very important distinction because, even with the enumerated prohibitions, all of us know, all of us teach, and all of us, on those occasions we might engage in litigation, use the jargon or mumbo jumbo, whatever you wish to call it, of a compelling state interest, which is enough to relax what appears on the surface to be a very strict command. One of the things I love about Blaisdell is that the grammatical form of the Contract Clause is identical to the grammatical form of the Free Speech Clause in the First Amendment.

 

But one of the reasons that we have semester-long courses on First Amendment is that we know that you can’t possibly understand First Amendment law by reading the First Amendment. Now, we don’t have semester-long courses on the Contract Clause, but the principle is the same, that reading the First Amendment -- reading the Contract Clause would lead you to say that no state can ever under any circumstances impair the obligation of contracts, but that’s not true. So I will end simply by saying that I’m very glad to have read this 140-page article. I learned a lot. No, that’s true. As I said in the chat box, it’s very well written and easy to read.

 

I found myself turning the papers and rarely stopping to say, “What in the world does he mean by this?” Still, at the end, I did find myself perplexed in the ways that I have said about what he generally thinks the implications are beyond the fact that we ought to stop pretending that Jacobson, on its own, resolves these very important issues of what kinds of power we wish to give legislators or executives or administrative agencies during a crisis like the COVID crisis.

 

Prof. Josh Blackman:  Well, thank you. I feel honored. And, again, the article’s long. I apologize you had to burden yourself to read it, but I do appreciate -- and the editors at Buffalo Law Review were very generous in editing this in a very short period of time. We published it quickly. The article kept expanding because every month it was another case, another case, but it ballooned us [inaudible 44:53].

 

Let me try and see if I can resolve your perplextion, if that’s even a word. I like judges to be transparent with their reasonings to the extent possible. A lot of judges seem to think the COVID cases were simple because of Jacobson’s [inaudible 45:08] 115 years earlier. If the judges had simply said, “That case was decided a different year, but we are now making a showing on our own. As a matter, of course, we have this once-in-century pandemic, and it’s for the courts to be restrained.” I would actually appreciate those opinions more rather than hiding behind the veneer of Justice John Marshall Harlan I. And I think the John Roberts opinion, which he cited Harlan, he ran away from it later. He didn’t stick by it. That’s where I would condemn.

 

Prof. Sanford Levinson:  Two of my favorite judges, and I’d be interested in your own response, were or are Richard Posner and Stephen Breyer. And I think they’re very similar in that neither, at the end of the day, is a deep legal formalist. Each -- and Posner, in particular, if you want a transparent judge, I think that was Dick Posner. He’s the only judge in history who has ever written a book called, Overcoming Law. And the whole emphasis, I think of Posnerism is that judges really ought to try to figure out, overall, what is best for the country and to use their power to try to achieve that. Breyer, I think, at the end of the day, is a slightly left-of-center law and economics buff or law and social science buff, and -- so transparency, for me, would be spending far, far less time on case crunching than all of the contemporary Supreme Court opinions do, which is one reason I hate reading contemporary Supreme Court opinions, even if I agree with their outcome.

 

I much prefer reading 19^th century cases, which I now spend most of my time teaching because, from one perspective, they really are much more transparent. There aren’t many precedents they seem to think they need to worry about. When they cite precedents, one can very often engage in Blackmanian critiques about whether they’re really all that accurate, but, by and large, they’re presenting, quite honestly, what they think the case is really about and what the country needs in terms of resolving what the case is really about. So I don’t know if Josh and I share the same notion of transparency or not.

 

Prof. Josh Blackman:  I do appreciate Posner. He said at an academic conference in Chicago — and I’m paraphrasing — he said, “Well, in hard cases, you find the result you want, and then, you take a reasonable way of getting there.” He was completely -- he said, “What’s the reasonably outcome, and you pick the reason that gets you there.” He was very transparent. So I do give him credit. I do like precedent though, and, unfortunately, I do read all the modern cases, and I very much just like reading them. They’re all painful to read. Not as painful as my 140-page book stop. We’re running a little short on time, Sandy, so maybe we could take some of the questions from the crowd.

 

Prof. Sanford Levinson:  Good, good.

 

Prof. Josh Blackman:  So there are a couple in the queue. If you have any questions, please feel free to type them in. One question’s a curious one. “If a state can force one to get a vaccine against COVID, could the state require people in communities to take a drug to prevent HIV transmission? HIV is still a public health emergency in certain areas, but people treat HIV differently than COVID?” I didn’t consider that one. Even despite all the insanity with COVID, no government ever came out with a general population-wide mandate. Right? And I’m supposed to be very careful.

 

They could have, but they didn’t. Even New York and some jurisdictions in California would go so far as to tie vaccination status to work status, that you can’t work unless you’re vaccinated. You can’t go to a restaurant unless you’re vaccinated. So they basically made it intolerable to exist unless you had your jab, and I think that represents a fact that there’s still this intrusion. They [inaudible 49:33] putting the needles in your arm forcibly. But, for most people in New York, it became virtually impossible to exist in civil society.

 

You couldn’t go anywhere. You couldn’t shop. You couldn’t be with other people. You couldn’t go to school. You couldn’t go to your job, etc., unless you’re Kyrie Irving. Right? You couldn’t do all these various things. But the HIV example is curious. How much -- how dangerous must a pandemic or some aliment be to require people -- so, anyway, that’s a curious question. I don’t know if Sandy has any thoughts on it.

 

Prof. Sanford Levinson:  I think it is an interesting question. The first thing that comes to mind is simply that COVID is so much contagious. It’s airborne that -- and, especially at the outset, the fatality rate turned out to be far, far, far higher than flu, even though, thank goodness, it turned out to be lower than some of the really dire predictions that were around at the beginning. So, if as a lawyer I wanted to distinguish the two, I would go down that route. But I also think that, in figuring out what the state can do, practically speaking, it’s always a good idea to remember Justice Holmes’ comment in the path of the law, where he said that Germans would revolt if you raise the price of beer by a nickel. And, so, any legislator, defined by broadly, also has to take into account popular reaction and the felt degree of intrusiveness.

 

And, so, I think that, at the end of the day — and this is the difference between formalism and what we might call Posnerian or Breyerism — do you make -- do you answer the question by talking very abstractly of, “Well, if the state can do x, it can do y,” and let’s go on to the next question, or do you say, “Well, look. You really do have to assess what the response would be of the society as a whole in doing this. How intrusive -- to what degree there would be rioting in the streets, etc.?” But, still, hypothetical questions are often very interesting, and I think this is an interesting hypothetical that could be worth more discussion in a classroom.

 

Prof. Josh Blackman:  All right. And I -- we’re just running short on time, and I don’t think we’ll get to them. Let me group together a couple of questions. A couple of questions concern what we might call, “science.” Right? And, when you have these novel vaccines with emergency authorizations and things that haven’t really been done before, to what extent are the courts equipped to say, “You need more proof.” I think it can be especially tricky when the numbers were changing almost daily. What kind of consistency do you demand?

 

I’ll give an example. I was personally involved in litigation against the state of New York. Governor Cuomo — who used to be office, no longer — decided to create certain hot zones, where in certain neighborhoods with high COVID rates, they’d be subject to restrictions, and other neighborhoods with lower rates, they wouldn’t. It turns out that almost all the neighborhoods he picked were Orthodox Jewish neighborhoods in Brooklyn. Go figure. And he would actually -- would gerrymander the lines. If you cross a street on the other side, it was fine, but, if one this side, there were all these restrictions.

 

There were other neighborhoods in the Bronx and elsewhere that were equal transmission levels. Right? And one of the arguments we said is that there was actually evidence that this based on, at least in perception, that the Orthodox Jewish people were not playing ball with him politically, and there might be aspects of retribution. And we know  Governor Cuomo would never engage in retribution against anybody, never ever, ever. Right? So can courts use the usual screens of what you might call protext or some other methodology of thinking? Or they simply say, “Well, it’s your -- it’s month 13 of the pandemic. Let’s just keep deferring along.” I think a couple of the questions speak to that broader issue. I know Randy -- ugh, Randy -- Sandy, my other dear colleague.

 

Prof. Sanford Levinson:  Yeah. Again, I think that’s interesting. One thinks of the Hialeah case, that, given Cuomo, it certainly not unthinkable that there would be a certain amount of aminus if, in fact, the Hasidic vote had gone elsewhere. I would be a little bit surprised if the Hasids had voted for Zephyr Teachout, but who knows? That being said, I think it is reasonable for a neutral and detached observer to believe that the Hasidic Jewish community is such that they congregate frequently, are not inclined to obey social distancing, are not inclined to follow the science, as it were, because that requires reading secular newspapers and the like, and that a person not animated by religious bigotry or getting the vote the next time -- as a matter of fact, this seems to be a sure-fire way to lose the vote in the next election, and we know that Cuomo certainly intended to run for re-election again, maybe even for president. So the facts do matter, that, if somebody says, “Look. You didn’t care about what the CDC was saying.” What he said is, “They crossed me, and I want them to pay.”

 

Then, a court should intervene and say, “You can’t do that.” But, here, you come back to classical problems of nonintentional discrimination and the extent to which we really want courts to say, “Well, there’s disparate impact, and we’re going to use disparate impact as equivalent to intentional bias.” And both of us know that these cases are all over the place because nobody in fact wants to use disparate impact as a complete substitute for intentional discrimination. And relatively few people would say, “You should be indifferent to disparate impact, unless you have smoking gun evidence that no smart politician is ever going to make easy for you to find.”

 

Prof. Josh Blackman:  All right. We’re right at the top of the hour, and I have another call I have to step onto. But this was a lot of fun. Thank you to Sandy. It’s always a treat to see you, Sandy. Thank you to The Federalist Society hosting, and to all those interested, read my paper, if you want to have some help going to sleep. And, hopefully, we can all gather in person together one day without standing six feet apart.

 

Prof. Sanford Levinson:  Thanks. Bye, bye.

 

[Crosstalk]

 

Ryan Lacey:  On behalf of The Federalist Society, I want to thank our experts on today’s call for the benefit of their valuable time and expertise today. And I would like to thank our audience for joining us and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming webinars. Thank you for joining us today. We are adjoined.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.