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.
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