Judicial Engagement Is Not Lighter Fluid for Riots

I live in the suburbs of St. Paul, Minnesota. A couple nights ago there was a rumor on social media that rioters “were coming” to a commercial area only five minutes away. Thankfully it turned out to be just a rumor, or for some reason it didn’t happen. Residents of a neighborhood in Minneapolis where I used to live—and many others—haven’t been so lucky.

What’s causing all of this? The immediate reason, the “proximate cause,” of course, is the police killing of George Floyd. Nevertheless, are these protests and riots, which quickly spread across the country, amplified because everyone has been cooped up for 10 weeks, not only because of the pandemic but because of the associated Great Depression levels of unemployment? Probably. But you know what’s not causing the violence (both by police and looters)? Courts reviewing the lawfulness of government behavior.

Yet the fear of courts doing that seems to animate something University of California law professor, and Volokh Conspiracy co-conspirator (with my colleague John Ross who posts our newsletter at the VC) Orin Kerr. Orin posted this tweet early Saturday morning after the Supreme Court rejected a request for an injunction by a California church:

I don’t have much to say on this case itself, which was an attempt to allow churches to more-fully-open that have been limited under the current stay-at-home order in California. The plaintiffs in the case argue that having a cap of 25% capacity (with a total limit of 100 people) while not placing that cap on various businesses violates their right to free exercise of religion. The Court denied the request and Chief Justice Roberts explained he voted to do so because large gatherings of people in churches are distinct from the businesses exempted from the order, but more generally because in matters like the pandemic the judiciary should tread lightly. Justice Kavanaugh, in dissent, disagreed and said the state hadn’t met the high bar necessary to treat houses of worship differently from businesses.

On the case itself I recommend a few thoughts that another co-conspirator, Josh Blackman, has. I don’t express an opinion on who is right. But Orin’s tweet caught my eye because whether or not the Chief is right in this particular case, he isn’t right because he’s being “restrained.”

I don’t mean to pick on Orin here, but I re-post his tweet because it’s an example of many opinions I’ve seen recently about the need for “judicial restraint” during a time of crisis. I have two responses to them:

1. Courts shouldn’t abdicate their duty to ensure the government isn’t breaking the law (which is at bottom all judicial review is) just because things are scary;
2. When courts don’t abdicate this duty—what we at IJ call judicial engagement—it hardly can be blamed for causing riots.

If it is unconstitutional to have a cap of 25% capacity in a church while having no cap for some businesses, courts shouldn’t refrain from saying so and protecting the church’s rights just because there’s angry people out there. There were angry people in Little Rock, Arkansas in 1958—angry enough to cancel school for an entire year!—and yet the Supreme Court did the right thing in enforcing the desegregation of the city’s schools. Enforcing the law—from a lawful stay-at-home order to our highest law, the Constitution—can make people mad. Picking and choosing which law to enforce because of unrest in the streets is not a proper role of a judge.

But it also isn’t something a judge needs to worry about in the present environment. People have been protesting recently primarily for two reasons: they are livid about stay-at-home orders, and/or they are outraged by police brutality. Invalidating a stay-at-home restriction is hardly going to be lighter fluid that will cause an additional level of unrest. (It could worsen the pandemic, but that’s an argument against invalidating an order; the lighter fluid isn’t the invalidation itself.) Just look at the two reasons people are protesting—they’re both examples of the courts not getting involved. In the case of stay-at-home orders upholding them is understandable and whether courts should be more involved is debatable and specific to a lot of changing facts, as the Chief pointed out. In the case of police brutality that’s very much a result of decades of judicial restraint leading to unaccountable policing. Therefore, how is a judge actually getting involved going to make things worse if judges staying out of it has been part of the problem?

I think some of this comes down to Orin’s use of the word “restraint.” When people are rioting and torching buildings “restraint” is absolutely a proper virtue. We should shout it from the rooftops. But don’t confuse “restraint” in not engaging in criminal behavior or jumping to conclusions or scapegoating groups of people with judges “restraining” from enforcing the law. Judges should hold the rest of the government accountable whether there are marches in the streets or marches on Zoom. Their enforcement of the supreme law of the land is not going to be the cause of looting my local Target.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.