On August 3rd, with the Delta variant surging, President Joe Biden’s administration issued a new 60-day moratorium on evictions in parts of the country with high levels of coronavirus transmission. The Centers for Disease Control determined that stopping people from being kicked out of their homes was essential to protecting them and their communities from this new and more contagious Covid-19 variant.
On Thursday, less than four weeks later, the six conservative justices on the Supreme Court decided they know better than the CDC. In an emergency order issued late last night, the court put a halt to this policy, potentially subjecting millions of people to being displaced in the midst of this raging health crisis.
What the Supreme Court did this week was ostensibly in the name of making sure that the Executive Branch doesn’t act beyond its authority to do so. The court’s short order explained that if the federal government wants to ban evictions during the pandemic, it needs to do so with a law that is passed by Congress and signed by the president. To try to impose a nationwide requirement on almost all landlords purely by CDC rule, the court argued in its unsigned opinion, goes against the basic structure of how the federal government is supposed to act. “Our system does not permit agencies to act unlawfully even in pursuit of desirable ends. … If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
There are several remarkable aspects of this decision. First, the court acted on such an important issue as part of its “shadow docket.” These are cases that are fast-tracked to the Supreme Court and decided without full briefing and without oral argument. In other words, the issues in the case receive less attention and thought than issues in normal cases. There are many critics of the court using its shadow docket to decide weighty issues that affect the entire country. The three justices in dissent decried a lack of “considered decision-making, informed by full briefing and argument.” But to no avail. The court’s majority plowed ahead anyway, quickly and summarily telling the president and the CDC that they cannot protect renters.
Second, the court’s conservative majority is showing increasing boldness in pushing forth its own right-wing ideology. There were moments in the last year that court observers praised the justices for reaching conclusions that were not split along party lines. These observers hoped that Chief Justice John Roberts was protecting the institution by forging alliances that did not break down on neat Republican-Democratic lines.
This was always just a fantasy, as last night’s decision reinforced: The court last term may have had a few cross-party decisions, but it had plenty of rulings that broke down in predictable fashion. Many of those cases were also shadow docket cases, where the Supreme Court allowed religious groups to get exemptions from coronavirus mandates and permitted states and the federal government to execute prisoners. But they were also in fully argued cases where the court upended voting rights protections, protected conservative donors from being publicly identified, and ruled against organized labor.
The same dynamic was at play yesterday. The six conservative Republicans on the court ruled that the eviction moratorium should be put on hold, hampering the efforts of the Democratic President to look out for the health and welfare of the country. The court’s three liberal Democrats pushed back in dissent, raising an alarm that the court was “second-guessing” the decisions of disease experts. But three is always less than six, so the Republicans won. That isn’t how we normally like to think the Supreme Court works, but that’s as good an explanation as any for what happened last night.
And finally, last night’s decision is another ominous sign of what’s to come. Last term, the Supreme Court had important issues on its docket related to the election, the pandemic, religious freedom, and more. But this coming term it has even weightier issues — in particular, whether to overrule Roe v. Wade and whether to expand gun rights to allow people to carry guns anytime, anywhere. The bold actions of the Supreme Court’s Republicans — including its ruling in the eviction case on August 26th — signal that this group of rightwing Justices will not shy away from imposing their conservative ideology whenever they can.
In other words, watch out. The conservative Supreme Court has just gotten started.