On October 6, 2020, New York Governor Andrew Cuomo imposed new restrictions on public gatherings in houses of worship. These policies were challenged by the Roman Catholic Diocese of Brooklyn, Agudath Israel of America, and other parties. The district court declined to enjoin Cuomo’s policy. It expressly recognized that Chief Justice Roberts “relied on Jacobson.” The court wrote, “in light of Jacobson and the Supreme Court’s recent decision in South Bay, it cannot be said that the Plaintiff has established a likelihood of success on the merits.” On November 9, the Second Circuit affirmed based on the South Bay concurrence. In dissent, Judge Park assailed Jacobson. He wrote, “Jacobson does not call for indefinite deference to the political branches exercising extraordinary emergency powers, nor does it counsel courts to abdicate their responsibility to review claims of constitutional violations.” That circuit court decision would be the last hurrah for the South Bay concurrence, and the fourth level of Jacobson’s myth.
The composition of the Supreme Court had changed since South Bay. Justice Ginsburg passed away, and was replaced by Justice Amy Coney Barrett. She took the judicial oath on October 27, 2020. And on November 12, the Roman Catholic Diocese of Brooklyn sought an injunction from the new Roberts Court. Later that evening, Justice Alito delivered the keynote address at the Federalist Society National Lawyers Convention. He spoke at some length about COVID-19, religious liberty, and Jacobson:
So what are the courts doing in this crisis, when the constitutionality of COVID restrictions has been challenged in Court? The leading authority cited in their defense is a 1905 Supreme Court decision called Jacobson v. Massachusetts. The case concerned an outbreak of smallpox in Cambridge. And the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading.
Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge. But to return to the serious point, it’s important to keep Jacobson in perspective. Its primary holding rejected a substantive due process challenge to a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.
On November 25, shortly before midnight, the Supreme Court decided Roman Catholic Diocese of Brooklyn v. Cuomo. The majority halted New York’s regulations. The per curiam opinion was unsigned. But, by process of elimination, we can infer that Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett were in the majority. Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan were in dissent. With Justice Barrett’s replacement of Ginsburg, the conservative court formed a new 5-4 majority.
The unsigned per curiam opinion was very short at less than 2,000 words. It did not cite Jacobson, or the Chief Justice’s South Bay concurrence. The mythical precedent of 1905 and the superprecedent of 2020 played no part in the Court’s decision. In Roman Catholic Diocese, the Court effectively repudiated the South Bay concurrence, and in the process, cast some doubt about the continued vitality of Jacobson—at least with respect to Free Exercise Clause cases. For our purposes, the most important aspects of the case were Justice Gorsuch’s concurrence and Chief Justice Roberts’ dissent. The two writings sparred over Jacobson.
Justice Gorsuch wrote a four-page concurrence in Roman Catholic Diocese and offered a stinging criticism of the South Bay concurrence. Gorsuch wrote that “a majority of the Court [now] makes…plain” that “courts must resume applying the Free Exercise Clause” to review COVID-19 measures “rather than applying a nonbinding and expired concurrence from South Bay.” Indeed, Gorsuch wrote that the South Bay concurrence “was mistaken from the start” because “[t]o justify its result,” the Chief Justice “reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts.” But, Gorsuch stressed, “Jacobson hardly supports cutting the Constitution loose during a pandemic.” Justice Gorsuch then wrote four paragraphs that addressed each of the four levels of Jacobson’s myths. Gorsuch forcefully rejected the first, second, and fourth levels, but he seemed to accept the third level.
First, Gorsuch recited the actual facts of Jacobson. He did not accept the first level of Jacobson’s myth from Buck v. Bell. Gorsuch wrote that the Cambridge law “required individuals to take a vaccine, pay a $5 fine, or establish that they qualified for an exemption.” There was no forcible mandate to be vaccinated. People could instead choose to pay a modest fine. Indeed, Gorsuch converted the $5 fine to present-day value as $140. Justice Gorsuch’s reading of Jacobson closely tracked my own, which I articulated prior to Roman Catholic Diocese. And I offered the same calculation, but rounded up to $150.
Second, Gorsuch rebuked the second layer of Jacobson’s myth from Sherbert v. Verner: the 1905 precedent has no bearing on laws that burden enumerated rights, like the free exercise of religion. Gorsuch explained that “Jacobson pre-dated the modern tiers of scrutiny.” He added, “[t]hat decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.” Specifically, Jacobson asserted what we would now call an “implied ‘substantive due process’ right to ‘bodily integrity’ that emanated from the Fourteenth Amendment.” Gorsuch’s choice of the verb “emanated” seemed to mock Griswold v. Connecticut. Justice Douglas’s infamous decision intoned that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Justice Gorsuch completed the barb in the next sentence: “Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise.”
Beneath the snark, Justice Gorsuch made an essential point: to the extent Jacobson has any vitality, the precedent only affects cases that involve unenumerated substantive due process rights. Jacobson should have no bearing, whatsoever, on laws that restrict “textually explicit rights” in the Bill of Rights, such as the “right to religious exercise.” Gorsuch added that “nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights” like New York’s restrictions on “traditional forms of worship.”
Third, Justice Gorsuch seemed to accept, at least by implication, the third layer of Jacobson’s myth from Roe v. Wade. He did not disagree that Jacobson was the appropriate framework to review substantive due process cases during the pandemic. Specifically, he contended that Jacobson “essentially applied [modern] rational basis review.” I disagree. The standard of review from Jacobson does not resemble modern day constitutional law. Jacobson’s test did not serve as a progenitor of the modern rational basis test. It is a mistake to conflate the two doctrines. If anything, Jacobson was more rigorous than modern rational basis review.
Here, I think Justice Gorsuch overreached. It was sufficient to simply find that the 115-year-old opinion predated modern constitutional law, and leave it there. Jacobson should be interred, not revived. Still, I agree with Gorsuch that Cambridge’s law would have “easily survived rational basis review.”
Fourth, Gorsuch rejected the fourth mythical gloss that Chief Justice Roberts placed on Jacobson: the deferential precedent is not a rubber stamp for all government actions during a pandemic. He stated, unequivocally:
Jacobson didn’t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so.
This argument is anachronistic. When Jacobson was decided, the “normal legal rules,” as we understand them today, did not exist. The better explanation is that Jacobson does not provide an escape hatch from modern constitutional doctrine.
The Chief Justice of the United States had no response to the hundred-plus federal judges who read Roberts’ “superprecedent” as embracing Jacobson. Jurists across the country managed to glean the same understanding of Jacobson. I find it highly unlikely that all of these judges misread a Supreme Court decision. The far more plausible conclusion is that Roberts sent an unmistakable signal to the lower courts. The inescapable implication of the Chief Justice’s concurrence is that Jacobson played a role in Robert’s constitutional calculus. Judges of all stripes saw what Gorsuch saw. There was not more than meets the eye. The rule was staring everyone in the face.
Roberts turned a blind eye as the judiciary consistently—and apparently erroneously—misread his opinion.
The South Bay concurrence has taken on a life of its own, far beyond the Chief’s intentions.” Whether intentional or not, Roberts provided critical and timely guidance for the lower courts. And in Calvary Chapel and Roman Catholic Diocese, the Chief Justice made no effort to disabuse those judges of their apparent errors. From my vantage point, Roberts was content that his understated concurrence nudged judges to adopt a constitutional framework from 1905.
Roman Catholic Diocese, and in particular Justice Gorsuch’s concurrence, laid bare the fourth level of Jacobson’s myth. A public health emergency does not give rise to an alternative standard of review. Still, some courts continue to follow Jacobson. Indeed, district court judges, bound by circuit precedent, may have their hands tied. However, from my read of the emanations and penumbras from the shadow docket, Roman Catholic Diocese has largely eclipsed Jacobson.
For a century, Jacobson v. Massachusetts was largely an obscure precedent. Yet, in a quartet of landmark cases—Buck v. Bell, Sherbert v. Verner, Roe v. Wade, and Roman Catholic Diocese of Brooklyn v. Cuomo—Justices invoked Jacobson. These simple citations elevated a narrow Lochner-era precedent into a complex, four-leveled myth.
First, under Jacobson, the federal government could forcibly sterilize people to promote the common good. Second and third, Jacobson provides an escape hatch from the tiers of scrutiny; the government has emergency powers to abridge enumerated and unenumerated rights. Fourth, during public health crises, courts must provide across-the-board deference to the government. Jacobson said nothing at all about these four principle. But Jacobson had been retconned to support each myth. During the COVID-19 pandemic, courts reflexively relied on the mythicized account of Jacobson to rubberstamp unprecedented restrictions on individual freedom. Yet, I suspect these cases would have come out in the exact same fashion even if Jacobson had never been decided. Judges of all stripes have a natural tendency to exercise restraint in times of crisis.
Justice Gorsuch launched a fusillade at those judges who relied on Jacobson to defer to COVID measures. He asked, “Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?”
Putting aside the Chief Justice’s South Bay concurrence, Gorsuch could “only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis.” Justice Gorsuch concluded that “things never go well” when judges “shelter in place when the Constitution is under attack.” He added, “Jacobson hardly supports cutting the Constitution loose during a pandemic.”
Jacobson proved to be a useful prop for judges who otherwise sought to exercise judicial minimalism. Its use of terms such a deference, the common good and fundamental rights and its historical origins as a case that arose during a virus outbreak was the ideal case through which judges could refract their own passive virtue was reason enough to waste no time and exercise no caution to elevate this case to the apotheosis of constitutional law.
One way in which this case has been useful is in the way it has shown the most prominent divide in our judicial system is not so much between liberals and conservatives as much as it is a divide between authoritarian jurists and libertarian jurists. Some jurists looked at this never-ending and ever-changing series of restrictions as arbitrary and capricious executive lawmaking. While other jurists welcomed all efforts from the state to do something-anything-to fight the coronavirus. The actual holding in Jacobson had virtually no impact on how judges viewed its proper interpretation and construction. Those inclined toward restraint found Jacobson to be the rubberstamp, authorizing ever manner of state action that they would have dimply found in some other irrelevant provision of law, had Jacobson not rose out the ashes of the Locherian period where such a case would have had to come from since you find little to nothing in the time before and after this era to justify similar curtailment of individual liberty and such a low valuation of the most fundamental of our liberties—that of bodily autonomy.
Jacobson in the Roberts Court
On October 6, 2020, New York Governor Andrew Cuomo imposed new restrictions on public gatherings in houses of worship. These policies were challenged by the Roman Catholic Diocese of Brooklyn, Agudath Israel of America, and other parties. The district court declined to enjoin Cuomo’s policy. It expressly recognized that Chief Justice Roberts “relied on Jacobson.” The court wrote, “in light of Jacobson and the Supreme Court’s recent decision in South Bay, it cannot be said that the Plaintiff has established a likelihood of success on the merits.” On November 9, the Second Circuit affirmed based on the South Bay concurrence. In dissent, Judge Park assailed Jacobson. He wrote, “Jacobson does not call for indefinite deference to the political branches exercising extraordinary emergency powers, nor does it counsel courts to abdicate their responsibility to review claims of constitutional violations.” That circuit court decision would be the last hurrah for the South Bay concurrence, and the fourth level of Jacobson’s myth.
The composition of the Supreme Court had changed since South Bay. Justice Ginsburg passed away, and was replaced by Justice Amy Coney Barrett. She took the judicial oath on October 27, 2020. And on November 12, the Roman Catholic Diocese of Brooklyn sought an injunction from the new Roberts Court. Later that evening, Justice Alito delivered the keynote address at the Federalist Society National Lawyers Convention. He spoke at some length about COVID-19, religious liberty, and Jacobson:
On November 25, shortly before midnight, the Supreme Court decided Roman Catholic Diocese of Brooklyn v. Cuomo. The majority halted New York’s regulations. The per curiam opinion was unsigned. But, by process of elimination, we can infer that Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett were in the majority. Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan were in dissent. With Justice Barrett’s replacement of Ginsburg, the conservative court formed a new 5-4 majority.
The unsigned per curiam opinion was very short at less than 2,000 words. It did not cite Jacobson, or the Chief Justice’s South Bay concurrence. The mythical precedent of 1905 and the superprecedent of 2020 played no part in the Court’s decision. In Roman Catholic Diocese, the Court effectively repudiated the South Bay concurrence, and in the process, cast some doubt about the continued vitality of Jacobson—at least with respect to Free Exercise Clause cases. For our purposes, the most important aspects of the case were Justice Gorsuch’s concurrence and Chief Justice Roberts’ dissent. The two writings sparred over Jacobson.
Justice Gorsuch wrote a four-page concurrence in Roman Catholic Diocese and offered a stinging criticism of the South Bay concurrence. Gorsuch wrote that “a majority of the Court [now] makes…plain” that “courts must resume applying the Free Exercise Clause” to review COVID-19 measures “rather than applying a nonbinding and expired concurrence from South Bay.” Indeed, Gorsuch wrote that the South Bay concurrence “was mistaken from the start” because “[t]o justify its result,” the Chief Justice “reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts.” But, Gorsuch stressed, “Jacobson hardly supports cutting the Constitution loose during a pandemic.” Justice Gorsuch then wrote four paragraphs that addressed each of the four levels of Jacobson’s myths. Gorsuch forcefully rejected the first, second, and fourth levels, but he seemed to accept the third level.
First, Gorsuch recited the actual facts of Jacobson. He did not accept the first level of Jacobson’s myth from Buck v. Bell. Gorsuch wrote that the Cambridge law “required individuals to take a vaccine, pay a $5 fine, or establish that they qualified for an exemption.” There was no forcible mandate to be vaccinated. People could instead choose to pay a modest fine. Indeed, Gorsuch converted the $5 fine to present-day value as $140. Justice Gorsuch’s reading of Jacobson closely tracked my own, which I articulated prior to Roman Catholic Diocese. And I offered the same calculation, but rounded up to $150.
Second, Gorsuch rebuked the second layer of Jacobson’s myth from Sherbert v. Verner: the 1905 precedent has no bearing on laws that burden enumerated rights, like the free exercise of religion. Gorsuch explained that “Jacobson pre-dated the modern tiers of scrutiny.” He added, “[t]hat decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.” Specifically, Jacobson asserted what we would now call an “implied ‘substantive due process’ right to ‘bodily integrity’ that emanated from the Fourteenth Amendment.” Gorsuch’s choice of the verb “emanated” seemed to mock Griswold v. Connecticut. Justice Douglas’s infamous decision intoned that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Justice Gorsuch completed the barb in the next sentence: “Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise.”
Beneath the snark, Justice Gorsuch made an essential point: to the extent Jacobson has any vitality, the precedent only affects cases that involve unenumerated substantive due process rights. Jacobson should have no bearing, whatsoever, on laws that restrict “textually explicit rights” in the Bill of Rights, such as the “right to religious exercise.” Gorsuch added that “nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights” like New York’s restrictions on “traditional forms of worship.”
Third, Justice Gorsuch seemed to accept, at least by implication, the third layer of Jacobson’s myth from Roe v. Wade. He did not disagree that Jacobson was the appropriate framework to review substantive due process cases during the pandemic. Specifically, he contended that Jacobson “essentially applied [modern] rational basis review.” I disagree. The standard of review from Jacobson does not resemble modern day constitutional law. Jacobson’s test did not serve as a progenitor of the modern rational basis test. It is a mistake to conflate the two doctrines. If anything, Jacobson was more rigorous than modern rational basis review.
Here, I think Justice Gorsuch overreached. It was sufficient to simply find that the 115-year-old opinion predated modern constitutional law, and leave it there. Jacobson should be interred, not revived. Still, I agree with Gorsuch that Cambridge’s law would have “easily survived rational basis review.”
Fourth, Gorsuch rejected the fourth mythical gloss that Chief Justice Roberts placed on Jacobson: the deferential precedent is not a rubber stamp for all government actions during a pandemic. He stated, unequivocally:
This argument is anachronistic. When Jacobson was decided, the “normal legal rules,” as we understand them today, did not exist. The better explanation is that Jacobson does not provide an escape hatch from modern constitutional doctrine.
The Chief Justice of the United States had no response to the hundred-plus federal judges who read Roberts’ “superprecedent” as embracing Jacobson. Jurists across the country managed to glean the same understanding of Jacobson. I find it highly unlikely that all of these judges misread a Supreme Court decision. The far more plausible conclusion is that Roberts sent an unmistakable signal to the lower courts. The inescapable implication of the Chief Justice’s concurrence is that Jacobson played a role in Robert’s constitutional calculus. Judges of all stripes saw what Gorsuch saw. There was not more than meets the eye. The rule was staring everyone in the face.
Roberts turned a blind eye as the judiciary consistently—and apparently erroneously—misread his opinion.
The South Bay concurrence has taken on a life of its own, far beyond the Chief’s intentions.” Whether intentional or not, Roberts provided critical and timely guidance for the lower courts. And in Calvary Chapel and Roman Catholic Diocese, the Chief Justice made no effort to disabuse those judges of their apparent errors. From my vantage point, Roberts was content that his understated concurrence nudged judges to adopt a constitutional framework from 1905.
Roman Catholic Diocese, and in particular Justice Gorsuch’s concurrence, laid bare the fourth level of Jacobson’s myth. A public health emergency does not give rise to an alternative standard of review. Still, some courts continue to follow Jacobson. Indeed, district court judges, bound by circuit precedent, may have their hands tied. However, from my read of the emanations and penumbras from the shadow docket, Roman Catholic Diocese has largely eclipsed Jacobson.
Conclusion
For a century, Jacobson v. Massachusetts was largely an obscure precedent. Yet, in a quartet of landmark cases—Buck v. Bell, Sherbert v. Verner, Roe v. Wade, and Roman Catholic Diocese of Brooklyn v. Cuomo—Justices invoked Jacobson. These simple citations elevated a narrow Lochner-era precedent into a complex, four-leveled myth.
First, under Jacobson, the federal government could forcibly sterilize people to promote the common good. Second and third, Jacobson provides an escape hatch from the tiers of scrutiny; the government has emergency powers to abridge enumerated and unenumerated rights. Fourth, during public health crises, courts must provide across-the-board deference to the government. Jacobson said nothing at all about these four principle. But Jacobson had been retconned to support each myth. During the COVID-19 pandemic, courts reflexively relied on the mythicized account of Jacobson to rubberstamp unprecedented restrictions on individual freedom. Yet, I suspect these cases would have come out in the exact same fashion even if Jacobson had never been decided. Judges of all stripes have a natural tendency to exercise restraint in times of crisis.
Justice Gorsuch launched a fusillade at those judges who relied on Jacobson to defer to COVID measures. He asked, “Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?”
Putting aside the Chief Justice’s South Bay concurrence, Gorsuch could “only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis.” Justice Gorsuch concluded that “things never go well” when judges “shelter in place when the Constitution is under attack.” He added, “Jacobson hardly supports cutting the Constitution loose during a pandemic.”
Jacobson proved to be a useful prop for judges who otherwise sought to exercise judicial minimalism. Its use of terms such a deference, the common good and fundamental rights and its historical origins as a case that arose during a virus outbreak was the ideal case through which judges could refract their own passive virtue was reason enough to waste no time and exercise no caution to elevate this case to the apotheosis of constitutional law.
One way in which this case has been useful is in the way it has shown the most prominent divide in our judicial system is not so much between liberals and conservatives as much as it is a divide between authoritarian jurists and libertarian jurists. Some jurists looked at this never-ending and ever-changing series of restrictions as arbitrary and capricious executive lawmaking. While other jurists welcomed all efforts from the state to do something-anything-to fight the coronavirus. The actual holding in Jacobson had virtually no impact on how judges viewed its proper interpretation and construction. Those inclined toward restraint found Jacobson to be the rubberstamp, authorizing ever manner of state action that they would have dimply found in some other irrelevant provision of law, had Jacobson not rose out the ashes of the Locherian period where such a case would have had to come from since you find little to nothing in the time before and after this era to justify similar curtailment of individual liberty and such a low valuation of the most fundamental of our liberties—that of bodily autonomy.