Supreme Court Could Rule on Eviction Ban as Early as September

In the face of another legal challenge by landlords of the latest CDC eviction moratorium extension at the behest of the Biden administration, the White House has filed a brief asking the Supreme Court to support the ban. 

According to some legal experts, it’s unclear that the new spin on the moratorium will work, and the court could upend the move long before the October 3, 2021 expiration date.

The arguments to allow the moratorium to end “are largely the same as those contained” in the lawsuit filed by landlords on June 3, Bonnie Hochman Rothell, a partner and chair of the Washington, D.C. litigation practice of law firm, Morris, Manning & Martin, tells GlobeSt.com.

“The government’s opposition has a few new components and claims that, while the new eviction moratorium order rests on the same statutory authority, it is more targeted than the original order as it applies only in ‘US counties experiencing substantial and high levels of community transmission’ rather than nationwide,” she adds.

The government also presented new data suggesting that the Delta variant’s surge of infections and hospitalizations make extension of the moratorium more important than before. 

“[Justices] Thomas and Alito and Gorsuch and Barrett would have granted that application” to end the moratorium back in June,” Victor Bongard, a senior lecturer in business law and ethics at the Indiana University Kelley School of Business, tells GlobeSt.com. Brett Kavanaugh, who wrote the order that previously denied ending the moratorium, mentioned at the time that he thought the CDC lacked the constitutional authority to act as it did.

“Although if you look at the [new] CDC moratorium, it’s very cleverly drafted and it answers on the face Justice Kavanaugh’s moratorium,” Bongard adds. “They tailored it more specifically to counties that had a high spread of COVID. But it’s not hard to see that Justice Kavanaugh would say the authority is still not there.”

“However, it is worth noting that Kavanaugh’s concurrence also cites the late Justice Scalia acknowledging that the stay depends in part on balance of the equities,” Hochman Rothell says. “The new CDC eviction moratorium is more pointed than the last one … To the extent that this new data tips the scales further on the issue of equities in the eyes of Justice Kavanaugh—or any of the other Justices that previously voted to grant the application—it could mean that Justice Kavanaugh sticks with the previous majority in denying the application to vacate the stay.” That would mean the moratorium remained in place.

How long before the CRE industry, and a lot of renters, know? “That’s up to [the Court],” Jonathan Adler, professor of law at Case Western Reserve University School of Law, laughingly says to GlobeSt.com. “Usually, we’re talking days after a briefing is complete for a motion like this. The court has what it needs to act, but how long that takes depends on how much disagreement there is on the court or whether someone’s going to write an opinion.”

And that could always be an issue. “We would assume that we’ll hear something within a week, but it’s really up to them,” adds Adler. “The longer it takes as a general matter, that’s a greater indication of disagreement of the court.”

“Did Chief Justice Roberts agree with Kavanaugh and just not say so?” Adler says. “We have no idea.”