Boston University Law Review
We examine federal judicial cases involving nonreligious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic in early 2020 to January 27, 2022. Consistent with the tradition of judicial deference toward states during emergencies, we find a high level of success for governments. However, governments did lose in 14.2% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers who brought claims based on gun rights and property rights, while Democratic- appointed judges were more likely to rule in favor of challengers who brought claims based on abortion rights. Judges also split along ideological lines with respect to challenges to federal eviction moratoriums and vaccine mandates. We conclude by arguing that courts should exercise greater deference to public health orders issued during emergencies.
Kenny Mok & Eric A. Posner, "Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic," 102 Boston University Law Review 1729 (2022).