SJC was right on Baker’s emergency orders

US Supreme Court is unlikely to take up challenge to governor's edict

AT THIS WRITING, many Massachusetts communities are imposing new mask rules to address the recent surge in COVID-19 cases, while public and private sector leaders are debating the merits of requiring vaccinations. For his part, Gov. Charlie Baker has mandated vaccinations for executive branch employees, but he has said he does not plan to utilize his authority to impose new statewide restrictions.

That he has such authority is not in doubt. In response to the emergency orders the governor began issuing in March 2020, which among other things limited the number of people allowed to gather in particular places, a group of business owners urged the Massachusetts Supreme Judicial Court, in Desrosiers v. Governor, to declare Baker’s actions illegal. In December 2020, the court rejected the business owners’ arguments and confirmed both that the governor has the authority under the Massachusetts Civil Defense Act to issue emergency orders, and that the pandemic orders did not violate constitutional commitments to due process and free assembly.

Unbeknownst to many, after their loss before the SJC, the business owners were not done. In May, they asked the US Supreme Court to review the SJC’s decision in Desrosiers, arguing that the court applied the wrong analysis to their First Amendment and due process claims.

It is unlikely that the Supreme Court will allow the request. The court’s docket is discretionary, composed of only cases the justices choose to hear. Recent analyses show that the court grants only about 1 percent of the petitions submitted for its consideration (though the percentage is slightly higher when the petitioner is represented by counsel).

The Desrosiers petition is up for consideration by the justices at their next conference in September. The governor has elected not to file a response. Though the court could request one, that seems unlikely: in June the governor lifted all of the emergency orders then in place, rendering any disputes about their constitutionality effectively moot. Likely the governor’s lawyers are betting the court has enough live controversies to address that it will pass on this settled one.

Perhaps the business owners are betting on the fact that, where the pandemic is concerned, the high court has in several instances more closely examined state and local pandemic restrictions that affect certain constitutionally protected interests, like the First Amendment right of individuals to the free exercise of religion.

But this case does not involve free exercise, and the business owners’ claims are not otherwise compelling. At bottom, they insist that Baker’s orders violated their rights to freedom of assembly and due process, because, they say, the governor did not treat all businesses in the Commonwealth the same. While this may be true, the SJC determined that, in the midst of a global pandemic, the governor legitimately could take account of factual differences in classifying businesses for varying levels of restriction and for purposes of the Commonwealth’s phased reopening.

The court essentially concluded that it was within the purview of the democratically accountable departments of government — and not the judiciary—to make the fine distinctions necessary to protect the public by deciding whether particular businesses should be deemed essential.

Meet the Author
This is as it should be. Setting aside for the moment the business owners’ technical arguments about the application of legal doctrines, Desrosiers was correct in a critical respect: By its decision, the SJC acknowledged that, in the midst of a crisis touching the lives of every resident of the Commonwealth, judges should not be second-guessing the health and safety determinations of the individual duly elected to make them. It is not a constitutional requirement that the governor exercise perfect judgment—that is a matter for public discourse, legislative debate, and, ultimately, the next election.

Lawrence Friedman teaches constitutional law at New England Law|Boston and is the co-author of The Oxford Commentary on the Massachusetts State Constitution.