What do two vape stores, a private drag strip, an axe-throwing facility, two hair salons, a gym, and a martial arts and yoga studio have in common?
After they were either told (or forced) to close because of the COVID-19 pandemic, they all filed a petition for writ of mandamus in the Texas Supreme Court challenging the acts of public officials (county judges and mayors) that led to the closures. They were joined by two individuals, one alleging he was cited by a police officer for walking with his wife into a Walmart and the other that he was prevented from presenting his tax protest in an in-person hearing before the appraisal district. The mandamus petition challenged the constitutional authority of local public officials to order the closure of businesses and impose other emergency restrictions.
On May 5, 2020, the Texas Supreme Court summarily denied the mandamus petition in a two-sentence order—already a departure from the Court’s run-of-the-mill summary disposition, which usually denies the pending petition or motion in a single sentence. The order is also remarkable for the concurring opinion that accompanies it. In that concurrence, Justice Blacklock (joined by Justices Guzman, Boyd, and Devine) signaled that the Supreme Court may ultimately be receptive to the constitutional challenges in the petition. Three aspects of the concurrence support this reading.
First, Justice Blacklock emphasized that compliance with the Constitution is most important in times of emergency, like the present: “[A]ll of us . . . must insist that every action our governments take complies with the Constitution, especially now. If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most.”
Second, Justice Blacklock explained that the government bears the burden to justify its restrictions: “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. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat.” And when meeting its burden, the government may be held to a high standard: either “strict scrutiny” or “some other rigorous form of review.”
Third, Justice Blacklock signaled that restrictions that may have been justified in the beginning, given the initial unknowns and uncertainty, may no longer be justified as we learn more about the virus: “As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.”
Where does this leave litigants? Though Justice Blacklock wrote only for four members of the Court, all justices signed off on the second sentence of the Court’s summary order denying the mandamus petition. As that sentence makes clear, constitutional challenges to COVID-19 restrictions should not originate in the Texas Supreme Court, but “should first be presented to the appropriate district court.” More litigation will likely follow.