The Supreme Court's shocking order from the shadows looks like a shot across the bow

The Supreme Court's shocking order from the shadows looks like a shot across the bow
U.S. Supreme Court Justice Stephen Breyer in 2006, Steve Petteway

On Thursday night, the Supreme Court issued a new injunction against a New York state law meant to shield tenants from eviction in the midst of the COVID-19 pandemic. But the order came on what's known as the shadow docket, which means the majority's decision is unsigned and typically offers little to no defense for the court's action.

Justice Stephen Breyer, joined by the other two liberals on the court, wrote a sharp dissent, arguing that the majority's decision doesn't meet the strict standards that should be applied. Though the case has no technical legal overlap with the arguments made against the federal moratorium on evictions, which expired briefly before the Biden administration reinstated a more circumscribed version of the policy, the conservative majority's extreme action against the New York law suggests the justices may have been influenced by their feelings about the prior case. It may be seen as a rejoinder to the Democrats' aggressive steps to protect tenants.

The new injunction only applies to a single section of the New York law. As part of legislators' efforts to respond to the COVID crisis, they enacted the COVID Emergency Eviction and Foreclosure Prevention Act. Under this law, if tenants claim they are experiencing financial hardship, landlords have little recourse to challenge this assessment or proceed with an eviction. The court believes this is unconstitutional.

According to the majority in the new order, "This scheme violates the Court's longstanding teaching that ordinarily 'no man can be a judge in his own case' consistent with the Due Process Clause."

The order also noted that a separate law, the Tenant Safe Harbor Act, nevertheless still offers tenants protection:

Among other things, TSHA instructs New York courts to entertain a COVIDrelated hardship defense in eviction proceedings, assessing a tenant's income prior to COVID, income during COVID, liquid assets, and ability to obtain government assistance. §2(2)(b). If the court finds the tenant "has suffered a financial hardship" during a statutorily-prescribed period, then it "shall [not] issue a warrant of eviction or judgment of possession."

So the court has blocked New York from enforcing the self-assessment provision of the COVID Emergency Eviction and Foreclosure Prevention Act.

Breyer argued in dissent that this decision was based on a serious mistake. He noted that the law being enjoined by the court is set to expire at the end of August, and issuing an injunction is an "extraordinary" act for the court to undertake.

"Under these circumstances, such drastic relief would only be appropriate if 'the legal rights at issue [we]re indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances,'" he wrote. And he doesn't think the conditions rise to this level.

While the law in question may restrict landlords' due process by denying them a hearing, Breyer noted, this is only temporary. The restriction expires at the end of the month, and proceedings can continue at that point. Since it's plausible to interpret this as only a delay of the process, not a denial of due process, the court has no business issuing the injunction.

He also said the hardship suffered by landlords hasn't been shown to be significant enough to justify the court's intervention at this point, especially since New York state has provided various forms of support to landlords affected by the crisis. And, of course, the injunction itself might cause its own hardships by leading to more evictions. (Indeed, it's hard to see why the petitioners would seek the injunction if they didn't think it would enable landlords to evict more people.)

"It is impossible—especially on the abbreviated schedule of an application for an emergency injunction—to know whether more hardship will result from leaving CEEFPA in place or from barring its enforcement," he said.

Finally, he noted that in conditions like a pandemic, the court should pay deference to legislatures, which are "responsible for responding to a grave and unpredictable public health crisis."

On Twitter, legal scholar Steve Vladeck noted that the court's recent use of emergency injunctions like this is far outside the norm.

"In the first 15 Terms of the Roberts Court, #SCOTUS issued a grand total of 4 emergency injunctions pending appeal (in part because the standard for granting one is so high)," he wrote. "This is now the *7th* injunction the Court has issued since Justice Barrett's confirmation last October."

So what explains this extreme decision on the part of the majority? As I suggested above, it may come down to a similar though technically unrelated case: the federal eviction moratorium.

The federal eviction moratorium was enacted under the Trump administration using the broad authority of the Centers for Disease Control and Prevention. When the issue finally came before the court in June, a five-justice majority of the court voted in favor of leaving the moratorium in place. Justice Brett Kavanaugh, writing a short concurrence as part of the majority, said he believed the moratorium was illegal but that it should be left in place until the end of July — when the CDC had said it would finally terminate. That meant, essentially, that there were at least five votes for the proposition that the CDC had exceeded its authority, but Kavanaugh restrained the court for prudential and accommodative reasons.

But as the end of July approached, the virus began to spread more rapidly, and the Biden administration became increasingly concerned about the expiring moratorium. With just days left, the White House announced the president's desire to see it extended by Congress. Congress, however, quickly made clear it didn't have the time or votes to act on the issue. Shortly after the expiration, the CDC announced a new, somewhat more limited version of the moratorium — though Biden admitted he had doubts it would hold up in court.

Many commentators feared that extending the moratorium past July would risk provoking the court's ire. Since Kavanaugh had apparently saved the moratorium based on the CDC's explicit promise that it would be short-lived, any extension of it could be seen as a slap in the face, a betrayal of the court's extension of good faith. Though the new federal moratorium is a modified version, and may therefore be defended on novel grounds, the conservative justices — and Kavanaugh in particular — may feel duped.

So does these circumstances explain the court's recent action against the New York law? Undoubtedly, the justices will never admit as much, perhaps not even to themselves. But as Breyer persuasively argued, the majority's decision is extreme and flimsy (not to mention undefended). And the court's reserve in the face of the federal eviction moratorium appears to have abruptly vanished. Perhaps a psychological explanation is warranted.

Based on the Biden administration's actions, the court's conservatives may have concluded that Democrats in the New York legislature couldn't be trusted to actually let the eviction restrictions expire. Breyer noted that the issue could come back to the court if an extension passed, potentially signalling that he believes this concern was on his colleagues' minds. But perhaps the conservatives just felt the need to put their feet down after the CDC case and stand up for landlords' rights.

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