Judicial Power and Influence on Population Health

Abstract

Policy PointsSince its founding, the Supreme Court has played a major role in defining the parameters of governments’ public health powers and the scope of individual health‐related rights. Although conservative courts have been less favorable to public health objectives, federal courts have, for the most part, advanced public health interests through consensus and adherence to the rule of law.In establishing the current six–three conservative supermajority, the Trump administration and the Senate shifted the Supreme Court dramatically. A majority of Justices, led by Chief Justice Roberts, did shift the Court in a decidedly conservative direction. It did so incrementally, guided by the Chief's intuition that the Institution itself should be preserved, mindful of maintaining public trust and appearing outside the political fray. That has all changed because Roberts’ voice no longer holds sway. Five members of the Court have displayed a willingness to overturn even long‐held precedent and dismantle public health policy in favor of the Justices’ core ideological tenants—notably the extensive reach of the First and Second Amendments and a parsimonious view of executive and administrative action.Public health is vulnerable to judicial rulings in this new conservative era. This includes classic public health powers in infectious disease control as well as reproductive rights; lesbian, gay, bisexual, trans, queer or questioning, and others (LGBTQ+) rights; firearm safety; immigration; and climate change.Congress has the power to curb the most extreme actions of the Court while still adhering to the vital ideal of a nonpolitical branch. That does not require Congress itself to overreach (such as by “packing” the Supreme Court, as Franklin Delaeno Roosevelt once proposed). Congress could, however, 1) disempower lower federal judges from issuing injunctions that apply nationwide, 2) limit the Supreme Court's so‐called shadow docket, 3) alter the way that presidents appoint federal judges, and 4) set reasonable term limits for federal judges and Supreme Court Justices.