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Supreme Court Justice Amy Coney Barrett has a sure-fire method for determining when judges are deciding cases based on their own policy preferences rather than sticking closely to the law. “Read the opinion,” she told an audience at the Ronald Reagan Presidential Library this month. Does it read like “an honest effort and persuasive effort … to determine what the Constitution and precedent requires?” Or is its reasoning more “political” than “judicial”? 

That seemed like pretty good advice, so I applied it to the recent decision by U.S. District Judge Kathryn Kimball Mizelle that invalidated the transportation mask mandate, which had been issued by the Centers for Disease Control and Prevention. I am dismayed to report that Mizelle’s reasoning comes across more like an advocate’s brief, or perhaps a candidate’s position paper, than a judicial opinion, and an especially disingenuous one at that. 

I am dismayed to report that Mizelle’s reasoning comes across more like an advocate’s brief, or perhaps a candidate’s position paper, than a judicial opinion.

Her decision rests almost entirely on a tortured misreading of one word, “sanitation,” implying a restricted definition that defies linguistic conventions and eviscerates the plain meaning of the 1944 Public Health Service Act, which established the federal government’s authority to combat infectious diseases. Mizelle’s supporting citations are misleadingly selective, bordering on outright deception. The Justice Department thankfully announced Wednesday that it will appeal her ruling, a move more likely to be successful because of the shoddy reasoning I detail here.

The heart of Mizelle’s 59-page opinion is her conclusion that the CDC was not authorized under the Public Health Service Act to mandate masks on public transportation, despite the statute’s grant of authority to the federal government to “prevent the introduction, transmission, or spread of communicable diseases” by measures including “sanitation.” 

Mizelle’s “rigorous statutory analysis,” as she put it, depends on an argumentative interpretation of the word “sanitation.” On the face of it, the word would surely seem to cover preventing the spread of the coronavirus through cough or sneeze droplets. Not so, said Mizelle. Turning to multiple dictionaries, she discovered that “sanitation” can have two senses. “First, sanitation may refer to measures that clean something or that remove filth,” she explained. “Second, sanitation may refer to measures that keep something clean.” 

Treating the two cherry-picked definitions as though they are mutually exclusive, Mizelle then performed a series of linguistic gymnastics to reach the conclusion that only the first one — “active cleaning” — was encompassed by the statute. Because “wearing a mask cleans nothing” but at most “traps virus droplets,” the mandate turned out to be beyond the CDC’s statutory remit.

That reasoning was result-oriented in the extreme. While Mizelle declared that the health service act “could have referred to active measures to cleanse something or to preserve the cleanliness of something” (her italics), that is a false dichotomy. The two definitions are most naturally read as complementary, not alternatives. “Sanitation” can mean either cleaning or prevention or both, depending on the context, which in this case is the prevention of a communicable disease. It is bizarre to contend that Congress intended to authorize the CDC to clean up a mess but not to prevent it. As the conservative blogger (and THINK contributor) Ilya Somin observed, Mizelle’s reasoning would prevent the CDC from enforcing a regulation against defecating on an airplane floor, limiting it to wiping up afterward.

Even worse, Mizelle simply ignored more expansive dictionary definitions from the same time period as the law’s enactment. The 1949 Merriam-Webster Pocket Dictionary, for example, has only one definition of sanitation: “Use of scientific sanitary measures to prevent disease.” Similarly, the 1937 Oxford English Dictionary (which happens to be on my bookshelf) defines sanitation as “the devising and application of means for the improvement of sanitary conditions.” Webster’s 1936 Collegiate Dictionary has words to the same effect, defining sanitation as “the use of sanitary measures.” 

These definitions obviously include both cleaning and prevention, and there was no legitimate judicial reason for Mizelle to omit them from her opinion. A lawyer who pulled that stunt would be reprimanded, and perhaps sanctioned, for misleading the court. It is inexcusable from a judge.

Many Latinate “-tion” words — formed by turning a verb into a noun — are likewise comprehensive. Consider a statutory authorization for “medication” in a hospital, which can mean both the administration of therapeutic drugs and the physical medicines themselves. It would be nonsensical to apply it only to the pills while excluding the doctors and nurses who distribute them to patients. “Separation” can refer to the state of separateness as well as the act of separating. To take a MAGA-inspired example — and a real possibility in today’s Florida or Texas — imagine a statute requiring the “separation of boys and girls bathrooms” in schools. Would Mizelle conceivably opine that it called only for policing existing facilities but not for designating or constructing separate bathrooms in the first place?

Mizelle’s reliance on a half-definition was a judicial sleight of hand, creating the appearance of reasoning plucked out of thin air. Without the previously unknown principle of radical linguistic dissection and definitional exclusivity that she applies, her opinion collapses into an obviously political argument with no underpinning in law. 

In Barrett’s terms, it is neither honest nor persuasive to strip “sanitation” of its natural and comprehensive meaning, and it certainly has no basis in the “Constitution and precedent.” It is, however, consistent with the conservative project of hamstringing the federal government’s Covid-19 mitigation efforts.

Source: This post first appeared on NBC News

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