Shadow Docket Day 2: Eviction Moratorium

While other news (Afghanistan) dominated, the Supreme Court got into the act after 9PM on Thursday by firmly saying that extending the federal eviction moratorium will require congressional action. Via an unsigned order that I'll assume is 6-3, even if the "rules" say only three (Breyer for the liberals) dissented on the record.

The anonymous writer of the majority in its brief eight page (if long for an order on a shadow docket that supposedly is for minor things) opinion made out as if it was all obvious. Not so as the dissent, divided lower courts, and dissenting law voices cited by President Biden. 

The anonymous (cowards) writer also said Biden/Congress was on notice. In a way.  The actual result -- which should matter a little bit -- rejected the challengers.  Four dissented without opinion.  Kavanaugh wrote and said he thought Congress clearly needed to act, but the July deadline made it unnecessary for him to dissent.  

As Breyer noted, "Certainly this Court did not resolve the question by denying  applicants’  last  emergency  motion,  whatever  one  Justice  might  have  said  in  a  concurrence."  The situation has changed, the Delta variant making the situation (which seemed to be getting better) worse.  The new moratorium was more tailored.  The situation changed.  

If the Supreme Court majority thought the matter so clear, they should have done it right.  Have an emergency hearing.  They are doing this by phone. They can do that one more time.  The importance of the issue and national scope warranted a full argument.  But, they have become the Shadow Court. So, why bother?

The Biden response pushed for various groups to help, Jen Psaki bluntly saying Friday the votes aren't there for Congress to change the law at this moment.  And, there are various means present, including money already provided that is not getting out to those in need.  Biden's extension bought some time, though the Supreme Court acted faster than I thought they would.  Some Southern areas will be the most at risk soon.  

What will this wrought? It is guesswork, but the risk (like Breyer not retiring) for serious consequences (thousands of people being hurt or killed was one estimate) is quite possible.  It is a travesty that even a fully legitimate court acts this way.  We have a 2/3 one at best now.  

One final thing.  I saw some comment that the result here was less extreme than it could have been.  Even Ian Millhiser, strong liberal critic, noted this on Twitter.  Eh.  I didn't expect -- all at once -- horrible results. Death by a thousand cuts.  The "Remain In Mexico" policy we just covered, for example, wasn't totally horrible given the lower court.  

Such sentiments are somewhat reasonable on some level, including to remind us what fully occurred.  But, it is in another fashion a bit dangerous. Why worry too much or demand major change?  It could be worse.  The majority had a decent argument.  And so on. Blah to all of that. 

No late night surprises Friday night.  My writing this originally shortly before midnight was okay.

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A somewhat related issue is the use of religious exemptions for vaccines. This Humanist piece argues against them here.  It notes no major religious group (noting a few minor ones) opposes vaccinations; the list provided even has the Jehovah Witnesses ultimately supporting them.  

And, some of the claims are not really sincere, using religious arguments as cover for vaccination hesitancy (often selectively applied).  The result expands what would otherwise be a narrow group.  There is not a universal clear way to balance who should get an exemption. And, it puts those with medical needs that lead to exceptions at risk. 

I am very sympathetic.  Unlike some liberals (and fewer non-liberals), I am still sympathetic to the idea of religious exemptions generally.  It is part of the balance.  But, vaccines protect public health and guard against harm to third parties.  They are a compelling state interest and all that.  

And, drawing religious lines here will be subjective and again likely based on more than religion.  Consider this appeal, arguing the vaccine somehow (somehow) is tainted by aborted fetal cells or something.  We saw this with contraceptives. Some very indirect connection that simply could not be consistently applied across the board.  

(I find it both wrong-minded on the merits and immoral for health workers to not take a vaccine because of such indirect alleged immorality. If the damn pope doesn't find a problem, them doing so is hard to take.)

But, since this is a hot button issue, it will be selectively.  For reasons that again once just be about religion.  Which is likely repeatedly the case, but compelling reasons like this make it a much harder thing to look past.  This doesn't require tossing out the baby with the bathwater.  No religious exemptions.  I think absolutism is not required yet again. 

It is unlikely we will have a broad change here.  It is quite possible that a few states will change their policies at least to some degree, including for some special cases like hospitals.  And, maybe, limit even more broad "philosophical" exemptions, noting the line there is hard to draw.