Judicial Review in Times of Emergency: From the Founding through the COVID-19 Pandemic
Amanda L. Tyler’s article examines how the U.S. Supreme Court has handled judicial review during emergencies, from the Civil War through the COVID-19 pandemic. Historically, the Court has largely deferred to political branches in wartime and crises, granting them broad discretion even when measures curtailed constitutional rights, as in Korematsu and other cases. Occasional exceptions, such as Ex parte Milligan or Youngstown Sheet & Tube Co. v. Sawyer, illustrate resistance to unchecked power, but they remain rare. The COVID-19 pandemic revealed a shift: in certain areas, notably religious liberty, the Court applied strict scrutiny and invalidated restrictions, while still deferring in contexts like prison conditions and abortion. Tyler critiques the Court’s inconsistency but argues for a “business as usual” model of judicial review, rejecting the idea that emergencies should alter constitutional meaning or judicial responsibility. She concludes that robust judicial oversight, even in crises, is essential to safeguard civil liberties.
The full text of the article is available in a PDF version on the Virginia Law Review journal website here.
Journal Article: Judicial Review in Times of Emergency: From the Founding through the COVID-19 Pandemic
Journal: Virginia Law Review
Date of Publication: May 2023
Author: Amanda Tyler, Shannon Cecil Turner Professor of Law, University of California, Berkeley School of Law
How to Cite: Tyler A., Judicial Review in Times of Emergency: From the Founding through the COVID-19 Pandemic, 109 Va. L. Rev. 489 (2023), https://virginialawreview.org/wp-content/uploads/2023/05/Tyler_Book-1.pdf
