Epidemics and the Supreme Court by Clare Cushman
In 1793, alarmed by reports of a yellow fever outbreak, the justices fled Philadelphia. The Supreme Court convened its sessions there twice a year, in August and February, as Philadelphia served as the nation’s capital from 1790 to 1800. Hastily adjourning the August Term to return to their hometowns (such as New York, Boston, Williamsburg VA, and Princeton NJ), the justices made an already short summer term even shorter: they usually sat for only a few days, as not many important cases had yet to percolate through the court system in the early days of the republic. Indeed, on the day the Court closed, Alexander Dallas, the freelance Reporter of Decisions for the Supreme Court, wrote: “The Malignant Fever, which during this year, raged in the City of Philadelphia, dispersed the great body of its inhabitants, and proved fatal to thousands, interrupted, likewise, the business of the Courts; and I cannot trace that any important cause was agitated in the present Term.”
The justices were prudent to postpone cases to the February 1794 Term: between August and November, 5,000 of Philadelphia’s 50,000 residents died in the epidemic. The vector was mosquitoes, probably brought on a ship from Africa, and the outbreak subsided with the cool weather. As scientists had yet to connect the virus to mosquitoes, quack transmission theories circulated amidst widespread panic during subsequent summer bouts. The justices were not the only ones who fled the city. Another outbreak in 1797 prompted civic leaders and government officials to leave. Some federal government offices—including the State Department, Treasury and Navy—moved temporarily to Trenton. The Philadelphia circuit court held session in Norristown, north of the city.
For a second time, in 1798, the Court abruptly adjourned its August Term. “There being some appearances of the Yellow Fever in Waterstreet, between the Bridge and Walnut Street, the lawyers agreed to continue most of the Causes, and our Court broke up yesterday,” Justice James Iredell wrote to his wife, Hannah, back home in North Carolina with their three children. The Court had opened on August 6, although William Irvine, a plaintiff in a land dispute case, had been worried “whether a sufficient number of the Judges will appear to hold a Court.” Five of the six Justices had bravely come to town; James Wilson, the only Justice actually from Philadelphia, was dying of malaria in North Carolina. On August 8, the Court rescheduled arguments for its February 1799 Term. When Irvine’s case was finally heard six months later, the Court ruled against him in Irvine v. Sim’s Lessee.
The August adjournment also left another litigant, Benjamin Bache, Benjamin Franklin’s grandson, with his case unresolved. Editor of the Philadelphia Aurora, Bache was an Anti-Federalist who penned inflammatory articles attacking government leaders, including President John Adams. In June 1798, he was arrested for seditious libel and charged with committing a common law crime. (He did not violate a criminal statute, because Congress would not pass the Sedition Act until July.) At issue in U.S. v. Bache was whether the federal courts have jurisdiction over common law crimes. Bache’s lawyers asked the Supreme Court for a stay of his trial on August 7, the day before it hastily adjourned. By the time the Court reconvened in February, the case was moot because Bache had died of yellow fever on September 10, at age 29. He had spent his last weeks condemning the Sedition Act as a violation of the First Amendment. Bache’s case was recorded as “abated by death of the defendant” in the 1799 Term.
In response to these outbreaks of “contagious sickness,” Congress passed a “quarantine and health law act” on February 25, 1799, that included a provision about the judiciary. Section 7 of the act permitted the chief justice to adjourn the Court during “hazardous” conditions and move its sessions “to such other place within the same, or an adjoining district, as he may deem convenient.” Yet it would not be until 1918 that the chief justice faced a decision about whether to hold Court sessions during an epidemic. In the fall of that year, the Spanish Flu pandemic, which took the lives of 50 million worldwide, hit our nation’s capital hard. Nearly 3,000 residents died of the disease in a few short months. The Spanish Flu virus was transmitted by humans, not mosquitoes, making crowded public spaces hazardous. Since moving to Washington, D.C. in 1800, the Supreme Court was lodged in the Capitol building, so Chief Justice Edward D. White did not have full control over decision-making about granting public access to his courtroom. The Old Senate Chamber, where the Court held session, did not have a separate outside entry and was subject to decisions about the building by the Rules Committee of both Houses of Congress.
The Supreme Court opened for business as usual on the first Monday in October (Oct. 7) after its summer recess. As the city was under “restrictive orders” about public gatherings, however, the Court “denied admittance to the Chamber of all persons but lawyers.” In an unprecedented decision, the House voted that day to close its galleries to the public to prevent contagion. (Congress continued operating during the peak of the epidemic but on a modified schedule.) The Court duly announced that it would close from Tuesday Oct. 8 until Monday Oct. 14. But as the number of people afflicted by influenza in the city continued to rise, the Court decided to push back the date of reopening for oral argument one week at a time, wisely so as the District of Columbia reported 400 deaths the second week of October and 730 the third week.
“We have been adjourned on account of the epidemic as it was not thought right to require lawyers to come, often across the continent, to a crowded and infected spot,” Justice Oliver Wendell Holmes wrote to his friend Sir Frederick Pollock, a British law professor. The Justices were not themselves at great peril, as this influenza was more deadly for those ages 20-40. Holmes took advantage of the pause in the Term by reviewing cert petitions, catching up on correspondence, and reading a biography of Abraham Lincoln. He also visited the (closed) Library of Congress, which allowed him to browse alone its collection of prints and illustrations.
The House and Senate galleries did not reopen until November 4, when the flu was finally waning. The Supreme Court also reopened that day, handing down decisions in the morning and hearing three arguments in the afternoon. After a month’s adjournment, the Court had to reschedule its business: the Justices heard cases argued in the Courtroom nearly every day in November. The delay put more pressure on an already jam-packed Term: out of 1,112 cases on the docket, the Court disposed of 680, holding over 432 cases for the 1919 Term. This backlog was typical of the era; before the Court gained its modern form of discretionary review in 1925, the Justices were unable to control the size of the docket by turning down mundane federal cases.
The next time the Court was affected by a public health crisis was in 2001 when anthrax-laden mail was sent to many government departments. The Supreme Court had been ensconced in its own building since 1935 and thus this time the Chief Justice and the Marshal were in control of decision-making about safety. When the basement mailroom received anthrax-tainted letters, the building was closed for a week to deal with the contamination. The argument schedule of the Court was not interrupted, however, as the Justices moved to a nearby courthouse used by the D.C. Circuit Court.
While the Court responded to dangerous epidemics by postponing arguments in the 1793, 1798, and 1918 Terms, the cases on the docket were either resolved during the same term or carried over for six months to the February Term. The Court consolidated two Terms to one in 1802 and now generally decides all the cases on its docket by the end of June or early July. There is much speculation as to what will happen if the current Court is not able to reopen and safely convene oral arguments before July because of the Covid-19 pandemic. (The Justices are continuing to review petitions and deliberate argued cases by teleconference and hand down decisions electronically.)
The Court could reschedule in-person oral arguments to Fall 2020 when the coronavirus has abated. In the past, the Court has occasionally chosen to hold over oral arguments for select docketed cases until the next Term for a number of reasons, one of which is that a full bench of nine Justices was not sitting because of a vacancy. Another option would be to decide cases based on the written briefs without hearing arguments. There is precedent for this as well, as the Court from time to time issues summary opinions that overturn the lower court opinion without briefs or oral argument. However, when the Court reaches a judgment this way, the result generally is a per curiam decision, which does not identify the author. (The Court also rules on petitions seeking review and emergency applications without hearing oral arguments.) Or the Court could try something unprecedented and use technology to allow it to hold virtual oral argument sessions. Perhaps it may even revive an historical precedent that reaches back to the 1790s and convene an August Term when the coronavirus is hopefully no longer a public health threat.