Biden will need to convince the country, and thus the Court, that we are still in a real crisis.
The history of the United States, insofar as concerns the vitality of civil rights in times of crisis, can be summed up succinctly. While a crisis ensues, when there is a real perception of threat to our security, the courts give the executive a wide berth.
They don’t exactly turn a blind eye. It’s more like slow-walking. Cases claiming infringement of fundamental liberties may be rushed into the justice system during a crisis, but courts will proceed cautiously.
Sometimes they’ll wait to issue rulings until the security threat has passed. In the heat of the Civil War, for example, when President Abraham Lincoln suspended the writ of habeas corpus and authorized detainees to be tried by military commission, the Supreme Court initially ducked the issue, claiming to lack jurisdiction (Ex Parte Vallandingham). Only after the war ended, only when the crisis had ebbed, did the Court hold, in Ex Parte Milligan, that Americans may not be subjected to courts-martial if the civilian courts are open and functioning. While it did not dispositively rule that Lincoln’s suspension of the writ was unconstitutional, the Court took pains to note that, to the extent such an action appeared to require congressional authorization, Congress had in fact affirmed the president’s action.
Other times, when crises rage, the Court is derelict. The classic case is Korematsu v. United States, during the height of World War II, when the justices upheld President Franklin D. Roosevelt’s internment of American citizens of Japanese descent, rationalizing that this was a reasonable measure to counter the threat of espionage. The ruling ranks with the lowest chapters in the Court’s history, as Justice Robert Jackson rued at the time in dissent.
Just three years ago (in Trump v. Hawaii), Chief Justice John Roberts, on behalf of the Court, quoted Jackson in observing that Korematsu “has no place in law under the Constitution.” It was, Roberts added, “gravely wrong the day it was decided, [and] has been overruled in the court of history.” That would be cold comfort to Fred Korematsu, who died in 2005, 13 years before Roberts’s declamation. By then, President Gerald Ford had formally apologized in 1976 for the internment, and a federal court in 1983 had overturned Korematsu’s conviction for evading internment.
Still, systematically speaking, a High Court mea culpa about justice delayed is not justice denied. When the Supremes finally do correct error, it establishes norms for future cases.
That doesn’t mean the Court will be eager to jump into the next fray, but it does mean that presidents have bright civil-rights lines to heed when that next fray comes along. There is a steep political cost to ignoring them: A Supreme Court precedent is a powerful weapon for a president’s congressional opposition to invoke. Indeed, the Biden administration just got a taste of that. When the president rationalized that the COVID-19 pandemic gave him license to extend his patently lawless eviction moratorium, congressional Republicans hammered him by invoking an opinion by Justice Kavanaugh (a concurrence and thus not technically a precedent, but close enough under the circumstances).
