Whether deferring to President Lincoln’s blockade at the start of the Civil War, a state’s suspension of creditors’ remedies during the Great Depression, or President’s Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II, the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that during peacetime would be viewed as flouting the Constitution.  Although there have been a handful of exceptions to this practice, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency.

When ruling upon cases arising out of the COVID-19 pandemic, however, an emerging Supreme Court majority applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where they intersected with the exercise of religion, but also in the area of property rights and separation of powers.  The Court’s propensity to be so active of late should revive debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same.

Although the Court has employed an inconsistent approach to its role during the pandemic and some may find fault in its merits assessments of certain cases, the Court’s express application in certain pandemic-era cases of normal standards of judicial scrutiny should be viewed as a welcome development.  The Court’s recent decisions suggest we have traveled some distance in rejecting the prosecution’s argument at the trial of the Lincoln conspirators that the Constitution is “only the law of peace, not of war.”  But, as will also be shown, we still have a considerable way to go.

Join Professor Amanda Tyler to dive into these arguments, set forth in her recent Virginia Law Review article, Judicial Review in Times of Emergency: From the Founding through the COVID-19 Pandemic.