With the narrowest of Senate majorities, President Biden is remaking the federal courts at a record-breaking rate. Biden has successfully confirmed twice as many federal Circuit and District Court judges as any modern president had at this point in their presidencies. The record pace isn’t because Biden is making nominations more quickly, but because the Senate, with the help of Lindsay Graham, are confirming them more quickly.
By the end of his administration, Trump had confirmed 54 Circuit Court judges, but was only able to bring the courts into rough political balance, with Republicans controlling seven of the Circuit courts and Democrats controlling the other six.
Remember when Chief Justice John Roberts castigated President Trump for referring to a District Court judge as an “Obama judge”? Roberts contradicted Trump in an extraordinary statement: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
On any contentious issue, one can predict how judges will vote based solely on their political affiliation. Just take last week’s Supreme Court ruling on the Centers for Disease Control and Prevention (CDC) moratorium on evictions of any tenants living in a county that has “substantial or high levels” of COVID-19 transmission. Over 80% of US counties were initially placed in this category. Now, it’s over 90%.
Before the moratorium was extended, even Biden acknowledged, “The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster.” White House senior advisor Gene Sperling told reporters, “The President has not only kicked the tires. He has double, triple, quadruple checked.” Sperling confirmed that they were “unable to find the legal authority” for a “targeted eviction moratorium.”
But the CDC has even decided to impose stiff criminal penalties -- $250,000 fines and one year in jail for each violation.
It seems that this should be an easy case. But while the Supreme Court struck down the CDC’s moratorium as “unlawful,” the three Democrat appointees on the court didn’t see a problem with it.
In a dissent joined by Justices Sotomayor and Kagan, Justice Stephen Breyer argued that the Public Health Service Act gave the CDC extremely broad powers. The act reads:
“to make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases [interstate]. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”
To Breyer, “The provision’s plain meaning includes eviction moratoria necessary to stop the spread of diseases like COVID-19.” Criminal fines and jail sentences apparently fall under the category of “necessary” measures. Note that the Act Breyer quotes from is for the Surgeon General and not even the CDC.
How exactly a moratorium on evictions will impact the spread of the virus isn’t even obvious. There’s no reason to assume that the would-be evictees are self-isolating.
Biden’s CDC has been caught colluding with the teacher unions, in order to make decisions based on union empowerment rather than on science. One can only imagine what else the CDC would do with unlimited power. Can they impose jail sentences on people who don’t get vaccines? Close down businesses across the country?
Biden clearly asked the CDC to extend its moratorium for political reasons. And the Democrats on the Supreme Court also let political concerns guide their decision, reaching a decision that even other Democrats conceded to be unconstitutional? But as Biden quickly remakes the federal judiciary, this willingness to substitute political decisions for what the law says will become more common.
Lott is the president of the Crime Prevention Research Center and most recently the author of “Gun Control Myths.” Up until January, he worked in the U.S. Department of Justice as senior adviser for research and statistics.