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Blog > Op-Ed > How is COVID-19 affecting current Supreme Court cases?

How is COVID-19 affecting current Supreme Court cases?

March 26, 2020 I By MARK MILLER

This week, Pacific Legal Foundation Senior Attorney, Mark Miller, joined Host Tim Farley on The Morning Briefing on the P.O.T.U.S. channel on Sirius XM radio. During the show Mark discussed how the COVID-19 pandemic could affect the cases currently before the Court and the constitutional issues that the Court is deliberating.

Listen to the interview here:

Or read the transcript of Mark’s interview below: 

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Tim Farley:

The United States Supreme Court has decided to postpone oral arguments set for this week. In addition to that, the Justice Department has been asking Congress quietly for the ability to ask chief judges to detain people indefinitely without trial during emergencies. A couple of things we want to go over with Mark Miller from Pacific Legal Foundation. Mark, welcome. Thanks for being here.

Mark Miller:

Tim, thank you for having me on.

Tim Farley:

Let’s talk about the Court. First of all, is this unprecedented? Is this something that’s happened before?

Mark Miller:

So last week, the Supreme Court announced it would be delaying oral arguments indefinitely. And if you look at the Court’s history, this has happened at least twice in the past because of a health crisis like what we’re facing now. The first was during the Spanish Flu outbreak that took, I think, 50 million people worldwide, estimates say, in 1918, and then when Yellow Fever hit the country in 1793 and I think in 1798.

Tim Farley:

So what is the significance of that in terms of the people who have these cases before the Court?

Mark Miller:

Well, I think that if you asked the attorneys, they’re probably a bit relieved that the Court was sort of aggressive in making this announcement. For example, Professor Mike McConnell, a former circuit judge who had one of the cases set for oral argument this week, was glad that the Court tried to get out ahead of things and say, “We’re going to postpone oral arguments for a couple of weeks,” because he lived across the country, in California if I recall correctly. So it would’ve been tough for him to get across the country for the oral argument. In fact of all people, Justice Oliver Wendell Holmes, we have many of his letters and so in 1918 when the Court was shut down for the Spanish Flu, he said almost the exact same point that Mike McConnell was quoted saying in the ABA Journal this week. He said it would be unfair to the lawyers to force them to come across the country in the middle of an epidemic like we are facing, then with Spanish Flu and like we are facing now with corona.

Tim Farley:

And by the way, many of these cases have been around for quite some time, right? It’s not like this delay is…. These are years-old cases in many cases, right?

Mark Miller:

Exactly right. These are cases that go on for a long time. So the Court has a couple of options here. It doesn’t even have to give oral argument. There’s no rule that says a case has to receive oral argument. In fact, many cases are decided without oral argument. The Supreme Court argument is important to us as Americans because it’s where we get to see the Court do its work, if you will, but much of the work the Court does goes on behind chamber doors and the Court could, I don’t think that’s what will happen here, but it does have the option to just simply dispense with oral argument and rule on the cases on the papers.

Tim Farley:

That’s kind of Clarence Thomas’ approach, right?

Mark Miller:

Yes, Justice Thomas. Whether you give him oral argument or not, it’s probably unlikely that he’s going to be asking many questions either way.

Tim Farley:

Again, Mark Miller is with us. Mark, a Pacific Legal Foundation senior attorney. Mark, I wanted to ask this question. This has developed over the weekend at Politico. Quoting from the story: “Documents reviewed by Politico detail the Justice Department’s request to lawmakers on a host of topics, including the statute of limitations, asylum, and the way court hearings are conducted. Politico also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.” A Justice Department spokesperson declined to comment on the documents, but the specific one that has many people raising an eyebrow is the ability to ask chief judges to detain people indefinitely without trial during emergencies. I’m not sure how much you’ve been following the story, but just in general, does this sound like something that the Justice Department would typically ask for, or is this something unusual?

Mark Miller:

Well, it does unfortunately, Tim, both under Republican or Democrat administrations, and it’s something that the Justice Department does typically ask for. If you just do any sort of digging, you’ll see administrations, whether it be the Obama administration, George W. Bush administration, often asking for this kind of power, power that not quite comes within Article One, Section Nine of the Constitution on suspending the writ of habeas corpus, but certainly seems to try to walk up to the line. One thing that’s nice about our country, I believe, is that left and right typically criticize these ideas. The Supreme Court has spoken to the idea of suspending habeas corpus, which I think is again what the Justice Department is kind of dancing around, that we could hold people indefinitely. And when President Lincoln tried to do that during the Civil War, which is probably the worst moment our country has faced since the Revolution, the Supreme Court told him no, that would be unconstitutional in a case called Ex parte Milligan, and it kind of gets at exactly what Justice Department said.

The Justice Department says, “We want to ask judges, chief judges to allow us to suspend court hearings,” but in Ex parte Milligan, the Supreme Court said no, as long as the courts are open, there is no reason to impose martial law and delay court hearings. It doesn’t make sense to have one without the other. Thankfully right now, our states and our federal courts are open and certainly the Supreme Court delayed oral argument, but it didn’t shut down. Cases are being decided. In fact, later this morning, the Supreme Court’s going to announce probably that it’s hearing a few new cases next year. Life is going to go on. The courts remain open. So I would think Congress and I think Justice Department will probably stand down from this request.

Tim Farley:

Well, to that point, though, the courts, they may remain open, but there are many places where they’re closing. In other words, they’re not having cases before the judges. I’m talking about civil cases and trial courts. I’m not sure how different it is for what the Justice Department was looking for, but I mean, doesn’t it get to the point where you don’t want people congregating in a courtroom?

Mark Miller:

Well, I think you make a good distinction there. You focused on civil cases. It’s one thing to say we’re going to shut down civil cases temporarily, but criminal cases is really what we’re talking about, what the Justice Department I think is talking about. If it’s not, it should clarify, but when you talk about delaying the right of people who are being held on criminal charges, not getting in front of a judge, effectively you’re saying the executive gets to act with unbridled power without the judiciary getting to review what the executive is doing to make sure it’s constitutional, that there’s probable cause to be holding people, that there’s reason to believe these people need to be held.

The Constitution contemplates that we’re only going to suspend habeas corpus, that we’re only going to postpone or cancel criminal hearings in a sense when there’s cases of rebellion or invasion. I guess you could try and cast coronavirus as sort of an invasion, if you will, but that’s not really what the Constitution contemplated, certainly the founding fathers contemplated. There’ve been times when martial law has been imposed at local levels, but really the best example on a national level would be when President Lincoln did it. It frankly is one of the few things President Lincoln tends to get criticized about during his tenure, his decision to impose martial law and suspend habeas corpus.

Tim Farley:

Suspending habeas corpus, and didn’t he continue to do that despite the Supreme Court telling him not to?

Mark Miller:

He did, yes. So one would hope that President Trump and his advisors would recognize, which I think to his credit so far he has resisted efforts to make this a nationalized decision to tell people to stay in place, that he’s basically recognizing that this is the proper role for the governors to make these decisions. So one would think he would shy away from trying to impose the kind of national, trying to push national power, the executive power to its utmost limits.

Tim Farley:

And the states can do that, can tell you to stay home. You can’t go anywhere.

Mark Miller:

Well, I think at this point, most of the states that have done so are doing so to protect the public health, whether it be in New York or California and whether we can do this indefinitely, I think it’s probably a policy decision, but at least in the short term when you’re talking about the risks to human lives and the serious risks to massive loss of human life, so far I don’t think they’re pushing the bounds of the federal Constitution.

Tim Farley:

Mark, I appreciate you being here. I know we wanted to talk about some of these cases before the Supreme Court, but some interesting civil rights issues I guess being brought up with the restrictions being put on people. Thanks so much for being on the show.

Mark Miller:

Always a pleasure, Tim. I hope next week we can talk and it’s a little more positive news.

Tim Farley:

Yeah, for sure. Mark Miller, a Pacific Legal Foundation senior attorney, joining us. Some of the issues before the Supreme Court or not because they’re not hearing arguments, although as he mentioned, they can still actually act on cases. And if you’re wondering, Mark is tweeting from @pacificlegal. This is the morning briefing on POTUS.

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