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Has judicial activism taken over the courts? A deeper look at the decision to overturn Biden’s mask mandate

AP Photo/John Minchillo

A U.S. District Court judge this week overturned President Joe Biden’s transportation mask mandate. The decision was met with alarm and concern by public health officials, as it may make it harder for the federal government to protect public health in the future. 

Now, the Biden administration is appealing the ruling, with the expressed goal of reinstating the U.S. Centers for Disease Control rule as COVID-19 cases continue to rise across parts of the country. Experts say the increase is fueled by the highly contagious BA.2 subvariant of SARS-CoV-2, the coronavirus that causes COVID-19. 

Wendy E. Parmet, Matthews University Distinguished Professor of Law and Professor of Public Policy and Urban Affairs. Photo by Matthew Modoono/Northeastern University

The ruling sparked criticism from legal experts, some of whom contend that the judge, U.S. District Judge Kathryn Kimball Mizelle, misunderstood the underlying law as it relates to the CDC’s authority. Mizelle ruled that the CDC, in fact, exceeded its authority in mandating masks on transit. The judge was given a “not qualified” rating from the American Bar Association, which highlighted the fact that, prior to her appointment by President Donald Trump, she had never tried a criminal or civil case as lead or co-counsel. 

News@Northeastern spoke to Wendy Parmet, Matthews Distinguished University Professor of Law and co-director of Northeastern’s Center for Health Policy and Law, about the decision and its implications for the government’s ability to regulate public health. Her comments have been edited for brevity and clarity.

A lot has been said about this particular judge’s qualifications for the judgeship. I’m wondering if that matters in how this ruling came about?

I don’t think the issue is the judge’s lack of experience. What we saw throughout the Trump presidency was that he was advancing judges in particular who had far-right and activist approaches to judging, and I think she was picked for that reason. 

I want to stress the activist part here, because we hear a lot about “originalism” today. Conservatives like to think they’re originalists. A couple weeks ago, Mitchell McConnell said conservatives believe in judges who are not activists. Well, this is an activist judge. It’s clear that she in some sense is doing what conservatives use to criticize liberals judges for doing, which is issuing a nationwide injunction. She also did it,  frankly, on the broadest grounds possible. 

Since the start of the pandemic, state and federal public health measures have been under increased scrutiny. Has that played a role here?

It’s quite clear that, over the course of the pandemic, more and more judges have turned a very suspicious, skeptical, and even hostile eye to public health measures. They’ve done it in ways that, even if you agree with their outcomes, are out-of-sync and unaligned with historical precedent approaches. That’s activism. Chief Justice [John] Roberts said that judges should be like umpires, but it does seem as if some judges are betting a lot of money on one side of this game right now. 

It’s very clear that the judges who have been striking COVID orders at the state and federal levels have disproportionately been Trump appointees. And the Trump appointees have been deciding cases in ways that are dramatically different even from Bush appointees and other traditional conservative judges.

What do you think about how this judge came to her decision?

Even if you think the mandate was unlawful, you could strike it in a narrow way or a broad way. You could issue an injunction in your district, for example. The Supreme Court’s conservative wing has many times over the Trump years admonished lower court judges for issuing nationwide injunctions against Trump [policies]. Now his own appointees are doing the very same with abandon against the Biden administration. 

You could also have [come to a decision] on administrative grounds, or evidentiary grounds. She chose not to do this. She chose a very strained, cramped way through a textualist interpretation. For example, she admits there are two different ways the word ‘sanitation’ can be used; yet she says, well one way appeared more frequently in 1944 [statute] and therefore that’s the only way it can be used, ignoring very clear language in the statute that says ‘or other measures.’ It’s a contortion of textualism. It’s an approach that is deeply skeptical of the government, and that is close to embracing particular policy position about COVID. For that reason, it is deeply troubling. 

In a perfect world a judge would be cautious about going broader than they need to. A judge would look at the record and the evidence, and give substantial deference to the agency as to the interpretation of what is ambiguous. That’s under the so-called Chevron doctrine, which she [Mizelle] claimed was not applicable here because of her own plain reading of the language. 

In a perfect world, facts would matter. So you certainly want a court to override an agency action if it lacks substantial evidence—if there’s no plausible scientific justification. What’s happening right now is the evidence doesn’t matter. It’s being thrown out.

What are the implications of this ruling?

If upheld by a higher court, it decapitates the CDC’s regulatory authority. We—the people—empower our elected representatives to establish regulatory agencies because we want a government to respond, and a government that can respond, when things go wrong. This decision effectively disempowers our government from enacting measures on our behalf—and it does so in disregard to the science. It leaves the CDC—and it leaves all of us—precarious and uncertain about what comes next. Everybody wants to believe right now that COVID is over. If it gets worse again, we’ll have almost no tools. 

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