Legal experts wonder if Jacobson v. Massachusetts be revisited

As authorities struggled to respond to the pandemic upended society, legal experts pondered how far a government's emergency powers should extend, especially when they threaten constitutional liberties.

For guidance, they had only a century-old precedent that upheld Massachusetts' mandatory compulsory smallpox vaccination law. Jacobson v. Massachusetts, 197 U.S. 11 (1905)

That has left some legal experts questioning whether Jacobson should be revisited. The U.S. Supreme Court may agree. In November the high court blocked New York Gov. Andrew Cuomo's cap on capacity for indoor worship services. Experts say that case might be a harbinger.

Scott J. Street, a partner at Musick Peeler & Garrett, has represented small businesses challenging government shutdown orders. He said he believes Jacobson should be revisited, as the scope of constitutional law standards that are applied have changed greatly since 1905, to the point where "they'd be unrecognizable to the people who decided Jacobson."

"I think personally that's a good thing, most legal scholars would think so whether it's enhanced judicial scrutiny of First Amendment challenges," Street said. "There are lots of things that weren't accepted in the early 20th century that are being accepted now, for example when the Supreme Court upheld the forced sterilization of a young woman. Those cases back then were just completely out of step with modern constitutional theory -- whether you're a strict scrutiny thinker or a factualist. Courts have to be more aggressive in saying so."

The laws should reflect advancements in medicine and technology, as well, Street said.

The question posed to court was whether to use Jacobson's deferential standard or a more stringent First Amendment rubric.

The U.S. Supreme Court turned away a chance to revisit Jacobson in the spring, amid the first wave of government closure orders. Chief Justice John G. Roberts Jr. sided with the court's liberals in refusing to block Gov. Gavin Newsom's closure order or houses of worship. South Bay United Pentecostal Church v. Newsom, 2020 DJDAR 4844.

UCLA Law professor Eugene Volokh noted the justices did not deny the emergency petition by pastors of a Chula Vista church based on merit; seeking an emergency stay was an extremely difficult threshold to meet. The applicants sought to stop the enforcement order in an emergency relief motion. Typically, that method is not available unless the legal issues are clear and such motions are only granted in incredible circumstances, Volokh said.

Volokh said he believes the court should not revisit its precedent in Jacobson. That court case is a better tool for deciding a government's emergency powers than funneling it through normal tests like strict or intermediate scrutiny, Volokh said. "The laws are narrowly tailored to be sure it's not a perfect fit, but what can you do, given the limited medical knowledge we have about this virus?" he reasoned.

Deborah J. Fox, a partner at Meyers Nave, has won several victories defending public entities from challenges to emergency orders. She agreed that Jacobson presents the best framework for balancing public safety during a crisis like a pandemic and civil liberties.

Strict scrutiny should always be applied when there is a compelling government interest to protect the public, Fox said.

"The big issue is whether the compelling interest is narrowly tailored, which is also a very difficult bar to get over," she said.