July 31st 2020

By Bill Blum

In the annals of American jurisprudence, few legal adages have gained wider currency or proven more adaptable to changing times and circumstances than the phrase, “The Constitution is not a suicide pact.”

While the exact provenance of the dictum is unclear, the expression is most often attributed to a dissenting opinion written in 1949 by the late Supreme Court Associate Justice Robert Jackson in the case of Terminiello v. Chicago.

Terminiello is one of the Supreme Court’s major decisions on “hate speech.” By a vote of 5-4, the court overturned the criminal conviction of Father Arthur Terminiello, a suspended Catholic priest, who had been charged with disturbing the peace for delivering a virulently anti-Semitic speech that incited rioting and vandalism.

Jackson, whose unique and storied legal career included a leave of absence he took from the Supreme Court in 1945 to serve as the chief U.S. prosecutor at the Nuremberg trials, refused to join the majority, arguing instead that Terminiello’s tirades exceeded the boundaries of protected discourse. His dissent ended with a stark warning:

“There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Jackson was on the losing side in Terminiello and rightly so, as Father Terminiello’s speech, while vile and repulsive, presented no clear and present danger to the social order. But Jackson’s sober admonition survived Terminiello and has been cited with approval in a variety of later Supreme Court rulings as a reminder that in the constant tension between civil liberties and official acts of government aimed at promoting the common good, context and balance are important for fair adjudications.

Jackson’s wisdom is urgently needed today in the fight against COVID-19. The deadly and highly contagious disease isn’t just sending Americans to the hospital and the grave. It’s also sending some to court in a determined effort to weaken the fight.

According to a database maintained by Hunton Andrews Kurth, a blue-chip, business-oriented law firm headquartered in Richmond, Virginia, more than 3,900 lawsuits related to COVID-19 have been registered in state and federal courts since the arrival of the virus in the U.S. The cases span the legal spectrum, ranging from complaints lodged against nursing homes and objections to prison conditions to workplace safety claims, requests for university tuition reimbursements, and, above all, constitutional challenges to state and local lockdown policies.

From New York to Michigan and California to Hawaii, state and local actions designed to slow the spread of COVID-19 have come under fierce legal attack. Funded by a panoply of aggrieved business owners, right-wing non-profit organizations, private citizens and religious organizations, a dizzying array of lawsuits have been filed to invalidate shelter-in-place orders and other mitigation measures that impose quarantines on out-of-state travelers, temporarily suspend the operation of high-risk and non-essential businesses, and require face masks to be worn in public places.

Although most mitigation measures to-date have been upheld by lower courts, the litigation is ongoing and unrelenting.

Three of the most high-profile constitutional challenges have already reached the Supreme Court, brought as emergency petitions by churches based in Illinois, California and Nevada to enjoin state-issued executive orders restricting the number of people permitted to attend religious services. The high court has denied relief in all three, but only by the slimmest of 5-4 margins.

The California case—South Bay United Pentecostal Church v. Newsom, decided on May 29—revealed deep, dangerous and familiar ideological divisions on the court, with Chief Justice John Roberts yet again casting the tribunal’s swing vote. Reaching back into Supreme Court history, Roberts drafted a brief but illuminating three-page opinion, in which he concluded:

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment…

“Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ … When those officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ … Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

The primary Supreme Court precedent cited by Roberts to justify his position—Jacobson v. Massachusetts—was handed down in 1905 in the midst of a deadly smallpox outbreak, long before many of the advances in modern medicine and epidemiology were made that we now take for granted. In a majority opinion written by Justice John Marshall Harlan, who is perhaps best known for penning the lone dissent in Plessy v. Ferguson, the court endorsed a Massachusetts law requiring compulsory vaccination.

In language that could easily be transported to the threat posed by COVID-19, Harlan declared:

“[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. … 

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Undeterred by Jacobson and unpersuaded by Roberts, the current court’s contingent of four hardcore conservatives—Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh—would have granted injunctive relief on grounds of religious liberty in both the California and Nevada disputes. (The court’s ruling in the Illinois case was issued in the form of an unsigned two-paragraph order that did not reveal the voting alignment of the justices.)

After the Nevada decision (Calvary Chapel v. Sisolak) was released on July 24, right-wing Republican politicians blasted Roberts for siding once more with the court’s liberals. Coming completely unhinged, Texas Senator Ted Cruz tweeted that Roberts had “abandoned his oath.”

Roberts and the liberals, however, maintain only a tenuous majority on the court on matters related to COVID-19. That majority, while good for now, is as frail as the declining health of 87-year-old Ruth Bader Ginsburg. It would take only one more Trump appointment to the bench for the majority to disappear.

In the meantime, as the pandemic continues to rage and as many states are forced to resume and maintain lockdown practices, we can expect more legal challenges to come before the Supreme Court, leaving the justices and the nation as a whole with the grim reality that in the face of COVID-19, we have two bottom-line choices—the protection of public health or constitutional suicide.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

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