On Mask Mandate, Activist Trump Judge Upends Policy

            When the Senate’s Republican leader Mitch McConnell announced his opposition to Supreme Court nominee Judge Ketanji Brown Jackson in a Senate floor statement, he denounced what he called “the outsized role that unelected judges play in our national life.” He attributed the problem to “direct consequences of liberal judicial activism” and “efforts to misuse federal courts as a progressive legislature that voters can’t kick out.”

            McConnell perhaps needs to be reacquainted with an activist federal judge that he helped get confirmed in the Senate by a party-line vote: Judge Kathryn Kimball Mizelle, confirmed to a lifetime post at the young age of thirty-three despite the American Bar Association’s rating of her as unqualified for the federal bench.

            Mizelle is one of the many doctrinaire conservatives that President Donald J. Trump nominated for federal judgeships and that McConnell shepherded to confirmation through the Republican-controlled Senate at a record pace from Trump’s earliest days in the White House and even after he had been defeated for re-election.

The Senate in fact confirmed Mizelle for the federal bench in Tampa, Florida, on November 18, 2020, two weeks after 81 million voters had cast ballots to deny Trump a second four-year term in the White House. Mizelle won confirmation by a strictly party-line 49-41 vote, with ten senators not voting (four Republicans and six Democrats).

            Mizelle’s post-election confirmation went all but unnoticed at the time, but she has now become exhibit number one for conservative judicial activism by striking down the federal transportation mask mandate instituted by the Centers for Disease Control (CDC) in February 2021 to try to reduce community spread of the covid-19 coronavirus.

            Mizelle issued her fifty-nine-page opinion on Monday [April 18] in a suit filed in her court on July 12, 2021, by the self-styled Health Freedom Defense Fund. The group, headquartered in Sandpoint, Idaho, filed suit on its own behalf and in behalf of two named Florida residents. The thirty-page complaint alleged that the CDC failed to comply with the Administrative Procedure Act’s notice-and-comment requirement before issuing the regulation and that the regulation went beyond the CDC’s statutory authority under the federal Public Health Statute.

            In filing the complaint, the group falsely claimed that “recent studies have shown that masks do more harm than good.” As the Washington Post noted in its coverage, claims like those have been “repeatedly debunked.” Mizelle’s decision reads much like an extended op-ed, padded with enough legal argle-bargle to sound like a carefully reasoned judicial decision rather than a result-oriented diatribe.

 Mizelle rested her decision on a narrow definition of the CDC’s authority to require “sanitation” to prevent spread of disease. Mask wearing, she reasoned, did nothing to help sanitize surfaces or environments—in apparent disregard of hospital practice that surgeons routinely wear masks in operating rooms. Even so, Mizelle acknowledged the CDC’s medical judgment at page 43 of her opinion. “The Court,” she wrote, “accepts the CDC’s policy determination that requiring masks will limit COVID-19 transmission and will thus decrease the serious illnesses and deaths that COVID occasions.”

Mizelle dismissed the CDC’s argument that the failure to include notice-and-comment before promulgating the regulation was harmless error because public comment would not have changed the agency’s decision. “The Court,” Mizelle wrote, “may not so lightly conclude that public input would have been inconsequential in a rule directly regulating individual conduct.”

In hindsight, one public health expert, Scott Gottlieb a former Food and Drug Administration commission, faulted the agency for short-circuiting procedures. Interviewed by Washington Post reporters, Gottlieb said, “[T]he outcome is partly CDC’s own fault because the agency has failed to develop a transparent record to support its actions and hasn’t engaged in rulemaking that might solidify its authorities.”

Mizelle details the agency’s shortcomings over several pages of her written opinion: pages 50-54. In sum, she writes, “irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did.”

The lifting of the federal mask mandate prompted major airlines to announce easing of their own masking policies. On one flight, a pilot announced the news from the cabin while airborne; a video that went viral showed smiling passengers clapping and cheering the news as they removed their masks. Even so, some public transit passengers reported in social media posts that many passengers were still wearing masks.

The Biden administration, caught unaware by the ruling, criticized the decision somewhat obliquely while leaving it up to the CDC to decide whether to appeal the ruling. “Public health decisions shouldn’t be made by courts; they should be made by public health experts,” White House press secretary Jen Psaki told reporters aboard Air Force One on Tuesday [April 19].

Despite Mizelle’s critique, the CDC reaffirmed its position afterward on the need for the mask mandate and urged the Justice Department to appeal the decision. The appeal goes to the U.S. Court of Appeals for the Eleventh Circuit, a notoriously conservative tribunal where Mizelle herself clerked eight years ago. The court’s judges are drawn from three ruby-red states: Alabama, Florida, and Georgia, hardly favorable terrain for the administration’s appeal.

           

Supreme Court School Prayer Case About to Fizzle?

          The religious right may be on the verge of a major disappointment in its effort to insinuate school-sponsored prayer into public schools despite precedents dating over six decades to protect students from school-sponsored religious indoctrination.

            An array of so-called religious liberty organizations rallied around a high school football coach after the local school district suspended him for conducting post-game prayers with his team in defiance of instructions from school district officials. Joe Kennedy argued that the suspension violated his freedom of speech and his free exercise rights to conduct what he characterized as private prayer, despite the public setting.

            The Court is scheduled to hear oral arguments in the case, Kennedy v. Bremerton School District, on Monday, April 25. In a late filed motion, however, the school district is urging the Court to dismiss Kennedy’s appeal as moot because he moved to Florida two years ago. In challenging the school district’s action, Kennedy asked for a declaratory judgment and an injunction returning him to the coaching position, but he did not ask for monetary damages.

            The school district argued in the Feb. 15 filing designated as “suggestion of mootness” that Kennedy no longer has standing to press his case because he cannot return to the coaching position even if the Court were to order the school district to hire him back. Kennedy explained in response that he and his wife relocated temporarily to Florida to care for her ailing father and that he will return to Bremerton if he is reinstated to the coaching position.

            Before this new development, two of my press corps colleagues, Dahlia Lithwick and Mark Joseph Stern, persuasively explained the high stakes in the case for protecting public school students from school-sponsored religious indoctrination. Their article in the on-line magazine Slate.com carried this headline, “How the Right Is Bringing Christian Prayer Back Into Public Schools” [April 14].

Lithwick and Stern explain the specious argument that Kennedy and his legal allies make in defense of his post-game prayers. “The case erases the rights of children who wish to avoid religious coercion at school, fixating instead on the right of school officials to practice their religion during the course of their formal duties,” Lithwick and Stern write. “It is the culmination of a decades-long battle to reframe government neutrality toward religion as unconstitutional discrimination against people of faith. And it is chillingly likely to succeed.”

In fact, four justices – Thomas, Alito, Gorsuch, and Kavanaugh – signaled support for Kennedy’s case when his legal team first brought the case to the Court. On a second round, the Court granted certiorari on January 14, 2022, setting the stage for oral arguments in April and a decision by the end of June. With Justice Barrett’s appointment, Kennedy seems very likely to prevail with five votes if the Court rules on the merits.

            Kennedy’s final reply brief, filed on April 15 by his counsel of record, Paul Clement, does not address the mootness issue. The brief does not note that Kennedy and his family relocated to Florida two years ago, even as an array of organizations on the religious right were pushing his case toward the Supreme Court.

            The school district has drawn support for its position in amicus briefs from, among others, the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State, and a dozen well-known church-state scholars. The scholars’ brief persuasively explains that the arguments in Kennedy’s behalf  “offend settled precedent concerning religious liberty, freedom of conscience, and religious equality in public schools.”

            The case, according to the scholars, poses this fundamental question: “whether the Court will hold true to precedents ‘protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools,’” quoting from Lee v. Wiseman (1992). In fact, some of the Bremerton teammates testified that they joined in Kennedy’s prayer circle because they feared they would get less playing time by not joining in.

            Kennedy’s argument, the scholars explain, “amounts to a direct assault on the line of cases originating with Engel v. Vitale (1962),” referring to the first of the school prayer cases from the 1960s. The scholars also criticize what they call Kennedy’s “maneuver” to cast himself as victim. “Petitioner seeks to characterize Respondent’s concern for the religious freedom and equality of its students as nothing more than hostility to his own religious practice—a move that turns on its head decades of well-reasoned school prayer jurisprudence.”

            The scholars go back even further into Supreme Court history to cite the oft-quoted phrase from Justice Robert Jackson in the second of the flag salute cases, West Virginia State Board of Education v. Barnette (1943). “If there is any fixed star in our constitutional constellation,” Jackson wrote, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

            The Court’s jurisprudence on legal standing clearly supports a finding of mootness in Kennedy’s case, but the conservative justices – beholden to the so-called religious liberty groups that supported the confirmations of Trump’s three justices – may well be tempted to overlook those precedents and instead reach out to rule in Kennedy’s favor. The arguments next week [April 25] will pit Clement on Kennedy’s behalf against Richard Katzkee, legal director for Americans United on behalf of the school district.

Supreme Court Confirmation Hearings Serve a Purpose

           Republican senators made such a mess at confirmation hearings for Supreme Court nominee Ketanji Brown Jackson that two longtime Court watchers called for eliminating the process altogether for future nominees. Columnists David Lauter and Charles Lane aired their views in their home newspapers, the Los Angeles Times (March 25) and the Washington Post (March 30). Lauter and Lane both worked the Supreme Court beat as reporters for several years before their current roles as columnists.

            History actually proves the value of Supreme Court confirmation hearings, however ugly and uninformative Jackson’s was and others before hers. The first of the nominees to be subjected to a Senate committee hearing was Louis Brandeis, the prominent advocate for consumers’ and workers’ who was nominated in 1916 by President Woodrow Wilson to be the first Jewish justice in the Court’s history. As author Ronald Shafer recalled in a recent retrospective, the practice was ugly from the start.

            Brandeis survived the grilling, which was tinged with overt antisemitism, to win Senate confirmation by a decisive 47-22 vote and to win a reputation as one of the Court’s great justices after serving for twenty-three years until his death in 1939. Through history, many other nominees have survived Senate committee hearings to win confirmation and serve with distinction, including, for example, Hugo Black in 1937 and such more recent justices as Ruth Bader Ginsburg and Stephen Breyer in 1993 and 1994 respectively.

            Jackson proved her entitlement to the Supreme Court seat by demonstrating grace, patience, and discretion during more than eighteen hours of grilling by GOP senators who found in her distinguished record points of vulnerability susceptible to partisan attacks. Jackson did so well that she convinced three Republican senators – Romney, Collins, and Murkowski – to break party ranks and to give her a measure of bipartisan support in the eventual 53-47 confirmation vote.

            In fact, no worthy Supreme Court nominee has failed confirmation after a committee hearing and Senate floor vote since the Brandeis precedent a century ago. But confirmation hearings have been instrumental in the Senate’s rejections of four partisan twentieth-century nominees who were rightly denied seats on the nation’s highest court. In the first of those episodes, the Senate rejected President Hoover’s nomination of the federal judge John Parker in 1930 on a 39-41 vote after a Senate hearing exposed Parker’s anti-labor and racist views as elaborated by witnesses from the AFL-CIO and the NAACP.

            In more recent memory, the Senate rejected two of President Nixon’s nominees: Clement Haynsworth and G. Harrold Carswell in 1969 and 1970 respectively after committee hearings exposed their discreditable records as federal judges on race and labor issues and, in Carswell’s case, his mediocre academic and professional qualifications.

            In each of those instances, the Supreme Court and the country emerged as winners as presidents responded by choosing nominees with better judicial temperaments. Hoover responded to Parker’s defeat by nominating Owen Roberts; Nixon chose Warren Burger and Harry Blackmun for the seats that would have gone to Haynsworth and Carswell.

            The modern history of Supreme Court confirmations begins with the Senate’s 58-42 rejection of President Reagan’s nomination of the arch-conservative Robert Bork in 1987. Lost-cause Republicans and conservatives have argued for more than three decades now that Bork was wrongly subjected to partisan attacks and defeated by a mostly partisan vote despite his exemplary academic and professional qualifications.

In fact, six Republicans joined Democrats in rejecting Bork’s nomination by the widest margin in history for an unsuccessful Supreme Court nominee. Bork earned the rejection by testifying in opposition to the constitutional right to privacy and by looking forward to what he called “an intellectual feast” as a Supreme Court justice rather than as a guardian for liberty and justice. With Bork’s defeat, Reagan turned to a well-respected federal judge, Anthony M. Kennedy, who was confirmed in a unanimous Senate vote and served with distinction for three decades despite grumbling from conservatives about his landmark gay rights decisions.

President Obama’s two nominees, Sonia Sotomayor and Elena Kagan, underwent partisan grilling by Republican senators in 2009 and 2010 respectively and went on to win confirmation by decisive bipartisan votes: 68-31 for Sotomayor and 63-37 for Kagan. By contrast, President Trump’s three Supreme Court nominees failed to win any significant support from across the political aisle. Three Democrats, wary of impending midterm elections in their home states, voted for Gorsuch in 2017. Kavanaugh got only one Democratic vote in his 52-48 confirmation in 2018; Barrett received no votes from across the political aisle and became the first justice in more than a century to win a Supreme Court seat without a single vote from a senator of the opposing party.

It can also be noted that Clarence Thomas and Brett Kavanaugh masterfully used their hearings to win public and senatorial support in the face of contentious accusations of sexual misconduct before taking the bench. Without the opportunity to address the accusations in person, both of them might have fallen short of confirmation.

Lauter and Lane provide no details on how they expect the confirmation process to be completed without testimony from the nominees themselves. And it seems very unlikely that either the Senate or the American public would be willing to entrust a lifetime Supreme Court seat to a nominee without a close public examination of the nominee’s qualifications and views.