The Florida Bar

Florida Bar Journal

Constitutional Contagion: COVID, The Courts, and Public Health

Book Reviews

In autumn 2023, the specter of COVID-19 threatens to recapture public attention. Earlier COVID challenges and responses instigated a plethora of legal activities, including statutes, regulations and sub-regulatory actions, and litigation culminating in precedent-setting judicial opinions. It is imperative that legal profession leaders learn from and act upon the key lessons taught by the recently developed body of COVID-related law, to improve societal reactions when the next inevitable contagious disease pandemic occurs.

Author Wendy Parmet, a Northeastern University law professor, has submitted a useful contribution to this end by organizing a thorough, well-referenced compilation of the factual contexts and judicial outcomes of COVID-era litigation in the U.S. However, readers should be aware that Constitutional Contagion is anything but an objective, descriptive chronicle of important legal developments. Rather, Parmet’s zealously advocated, sustained partisan take on the topic is that much of the American judiciary, and particularly five (sometimes six) members of the Supreme Court, did enormous damage to the nation’s health during the COVID era and beyond.

In Parmet’s telling, the Supreme Court and many lower level judges erred badly in 2020 and since by deviating from traditional judicial deference — nay, reverence — to the public health establishment (manifested in holdings routinely approving legislation and regulation promulgated with a salus populi suprema lex label), instead now often subjecting legislative and regulatory action jeopardizing individual rights to strict scrutiny analysis and examining Executive Branch actions under Separation of Powers and delegation of authority principles. As the author sets out her mission, “This book explores the courts’ role in [the U.S. COVID] disaster. More specifically, it examines how judicial decisions — especially constitutional law decisions — that privileged a particularly thin and one-sided conception of liberty helped to undermine our response to the pandemic and amplify the forces that tear at our social fabric” (p. 4). In an even more dramatic indictment, Parmet charges, “While our constitutional system will always make public health prevention messy and imperfect, it does not condemn us to the level of disease and despair we have experienced. That required judicial interpretation” (p. 6).

The author laments that, because of the ignorance and/or indifference if not outright bad faith of the current Supreme Court majority resulting in invalidation of too many COVID-related government forays, “[I]f a new surge or pandemic arises, officials at all levels of government will have few tools with which to respond. Personal responsibility will be all that we have” (p. 114). If one agrees with Parmet’s claim that approving coercion by government experts is an essential component of the pathway to “real liberty” (p. 217), this is a scary prediction indeed.

Parmet presents her point of view fully and passionately and will persuade a portion of the readership. But those who approve of Florida’s individual rights-oriented, skeptical of mandates response to COVID likely will not be among her disciples.

Marshall Kapp is a member of The Florida Bar.