Will the Texas Supreme Court Follow the Wisconsin Supreme Court in Rejecting Much of the Coronavirus Crackdown?

By Adam Dick - May 23, 2020 at 12:06AM

Last week the Wisconsin Supreme Court became the first among the highest state courts in America to void much of a state government’s coronavirus crackdown. With legal challenges being pursued in response to liberty suppression through the expanding of government power across America in the name of countering coronavirus, expect other states’ top courts soon to be considering the legality of state and local crackdowns as well. A declaration earlier this month by four of the nine justices of the Texas Supreme Court suggests that there may be strong support in that court for taking similar action as did the Wisconsin Supreme Court.

Rob Henneke and Chance Weldon of the Texas Public Policy Foundation, in a Wednesday Texas Lawyer article, describe the justices’ declaration as firing “a shot across the bow of government officials continuing draconian COVID-19 restrictions in Texas.”

Henneke and Weldon continue:

In a concurring opinion, Justices Blacklock, Guzman, Boyd, and Devine reminded everyone that the 'Constitution is not suspended when the government declares a state of disaster.'

'As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it,' the opinion continued 'burdens on constitutional liberties may not survive judicial scrutiny.' This opinion was a message—the Constitution still applies, and the courts will enforce it.

And Henneke and Weldon further quote from the concurring opinion language suggesting these justices are looking forward to there being probing judicial review of the coronavirus crackdown in Texas:

As the four Texas Supreme Court Justices note, 'Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity” and that “less restrictive measures cannot adequately address the threat.'

You can read the short concurring opinion here.

It should also be noted that the justices seem not to be fully aware of how extreme the coronavirus crackdown has been in the state or are focused solely in their declaration on statewide aspects of the crackdown. The concurring opinion states that “Texas is a welcome exception” to the situation in “some parts of the country” where “churches have been closed by government decree.” The reality has been quite different for many Texans. Consider, for example this mandate in the March 22 Amended Order of County Judge Clay Jenkins for Dallas County, Texas, where well over two million people live:

Religious and worship services may only be provided by video and teleconference. Religious institutions must limit in-person staff to ten (10) people or less when preparing for or conducting video or teleconference services, and all individuals must follow the Social Distancing Guidelines including the six foot social distancing.

Cases challenging state and local coronavirus crackdowns are working their way through state court systems. Included among these cases are wins against crackdowns at the trial court level in Oregon and Ohio.

Even without the Texas Supreme Court having so-far ruled against coronavirus mandates in the state, the Texas government has already cried “uncle” to a large extent in regard to enforcing Texas Governor Greg Abbott’s crackdown. This is evidenced by the recent decision of the Texas Department of Licensing and Regulation to drop and disregard, respectively, hundreds of investigations and received complaints concerning barbers and cosmetologists who allegedly violated coronavirus mandates — mandates that have included that these individuals cease working in their licensed fields.

Even if the Texas Supreme Court strikes down much of the coronavirus crackdown in Texas, much damage will have, of course, already been irreversibly inflicted on people’s liberty and the economy in the state. Still, such a decision by the court can help protect people in the state from, in the future, being subjected to new draconian mandates state and local governments may desire to implement in the name of countering some virus or other purported crisis of the day.



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