For 200 Years Courts Upheld Rules to Protect Americans’ Health. Until Now

Alongside growing controversy over judicial nominations, court reform and Covid-19 policies, American law is in the midst of a little-noticed paradigm shift in courts’ treatment of public health measures.

The Republican Party’s campaign to take over the federal and state courts is quietly upending a long and deeply embedded tradition of upholding vital public health regulations. The result has been a radically novel and potentially catastrophic sequence of decisions blocking state responses to the coronavirus pandemic.

For centuries, American constitutional law granted state governments broad public health powers. “Salus populi suprema lex,” the old saying went: The health of the people is the supreme law. Such authority went back to the beginning of the Republic. In the famous 1824 case of Gibbons v. Ogden, Chief Justice John Marshall defended the “acknowledged power of a State to provide for the health of its citizens.” States, he explained, were empowered to enact “inspection laws, quarantine laws” and “health laws of every description.”

Lemuel Shaw of Massachusetts, who was arguably the most respected state judge of the 19th century, supported vast public health powers and described states’ authority to control epidemics as central to the sovereign power of government. The Alabama Supreme Court agreed, citing the old dictum of salus populi, and courts in states like Georgia and Louisiana followed. In New York, the state’s highest court upheld disruptive health regulations like a ban on burials in urban church cemeteries. After the Civil War, New York’s courts upheld the Legislature’s decision to vest local boards with “absolute control over persons and property, so far as the public health was concerned.”

....

The basic outlines of this approach remained in place for more than two centuries. Today, however, the tradition of salus populi is in collapse. In state and federal courts alike, Republican-appointed and Republican-elected judges are upsetting the long-established consensus.

This month, a bare majority of four Republican-appointed justices on the Michigan Supreme Court struck down the state’s 75-year-old emergency powers law as an “unlawful delegation of legislative power to the executive.” In dissent, Chief Justice Bridget McCormack (who was endorsed by Democrats when she campaigned for election to the court) correctly identified the majority’s reasoning as “armchair history” that set aside decades of precedent.