Was mask mandate judge a hypocrite?

Kathryn Kimball Mizelle is the youngest federal judge in the U.S., having been appointed by President Trump in 2020, when she was only eight years out of law school. She may also be the most hypocritical. A central finding in her opinion in Health Freedom Defense Fund v. Biden, invalidating the Centers for Disease Control and Prevention’s (CDC) transportation mask mandate, was founded on the evidently purposeful suppression of key passages in her own sources. In pursuit of the enduring Republican goal of hobbling federal administrative agencies, she abandoned the tenets of the conservative legal movement, becoming an “activist judge” who “legislates from the bench.”

Let’s begin with “original meaning,” which is supposedly the essential conservative method of construing statutory and constitutional texts. That task should have been straightforward for Mizelle, given that the 1944 U.S. Public Health Services Act confers authority to “prevent the introduction, transmission, or spread of communicable diseases” by means of “sanitation” and “other measures . . . that may be necessary.” In the public health realm, “sanitation” has had a broad meaning since at least the 19th century, which makes sense given the goal of protecting people from disease.

Instead of recognizing the everyday meaning of “sanitation” and moving on to other issues, Mizelle relied on cherry-picked quotations from mid-20th century dictionaries to derive a couple of dueling definitions, claiming that they constituted mutually exclusive senses of the word: “First, sanitation may refer to measures that clean something or that remove filth,” she said. “Second, sanitation may refer to measures that keep something clean.”

Mizelle liked only the first definition, announcing that “sanitation is limited to cleaning measures.” She trashed the second one, because “a mask cleans nothing.”  In support, she cited the 1948 Funk & Wagnall’s Dictionary (“the removal and neutralization of elements injurious to health”) and the 1942 Webster’s New International Dictionary (“rendering sanitary”), declaring that she had to choose one or the other.

In fact, Mizelle strategically skipped even likelier, more comprehensive definitions from the very sources she cited. The full definition in the 1942 Webster’s Dictionary is “a rendering sanitary; science of sanitary conditions; use of sanitary measures,” with no restriction to cleaning. The definitions in the 1948 Funk & Wagnall’s Dictionary include “the practical application of sanitary science,” without excluding “measures to keep something clean.” Mizelle did not acknowledge either of these definitions in her opinion, although both would plainly cover masking. Given the brevity of the entries, there was no way for her to miss the inclusive definitions. The omissions must have been deliberate.

Supreme Court Justice Clarence Thomas, the great expositor of original meaning, for whom Mizelle clerked, has cautioned that words and phrases must be given their “natural meaning in context,” rather than contorted to serve some other end. Mizelle’s context for “sanitation” consisted of a few adjacent words in one sentence, such as “fumigation” and “pest extermination.”

She flouted the greater context of the full Public Health Services Act, which, among other provisions, authorizes the CDC, upon delegation by the secretary of Health and Human Services, to issue regulations necessary to prevent the interstate spread of communicable diseases. And she completely disregarded the history of sanitation as a concept and practice.

Mizelle not only tactically purged her own sources, but she also ignored the full name and purpose of the Centers for Disease Control and Prevention – the latter noun having been added for a reason in a 1992 amendment to the Public Health Services Act.

According to the congressional conference report on the amendment, the name change was in recognition of the agency’s leadership role “in addressing illness and disability before they occur.” Or as Sen. Tom Harkin (D-Iowa) explained on the Senate floor, the expanded name would “elevate prevention to its appropriate high level within the structure of government health care programs.” Ian Millhiser noted on Vox that Mizelle’s strategic reading would not allow the CDC to mandate working toilets on airplanes, requiring the agency “to wait until passengers were wading through feces before it could order the airline to clean it up.”

In less earthy terms, it was manipulative for Mizelle to hold that the CDC has only the power to control the COVID-19 virus, but not to prevent its exhalation into confined spaces. If her decision is allowed to stand as precedent, the CDC’s ability to fight deadly diseases will be seriously crippled.

Leading conservatives – including Justice Thomas and Trump administration attorneys general Jeff Sessions and William Barr – have strongly objected to so-called nationwide or universal injunctions, in which a single, unelected judge prohibits all enforcement of a federal regulation or law.

While perfunctorily noting her own “skepticism” of such injunctions, Mizelle nonetheless proceeded to vacate the entire mask mandate on flimsy grounds, rather than simply barring its application to the relatively few plaintiffs before her (it was not a class action). The nationwide order was necessary, she said, because it would otherwise be too difficult for airlines to distinguish “the named plaintiffs from millions of other travelers.”

In other words, Mizelle placed the comfort of a small number of plaintiffs, who alleged that they suffered from mask-induced anxiety, ahead of the potential danger to millions of daily passengers, who supported continuing the mask mandate by 55 percent to 24 percent.

Exercising the opposite of judicial restraint, Mizelle issued her ruling only two weeks before the mandate’s expiration date. There was every reason to wait before preemptively invalidating the mandate for the entire country – which would have imposed only a brief delay and minimal inconvenience on the plaintiffs – if she had not been in such an activist rush to privilege her own judgment over the doctors and scientists at the CDC.

According to the Oxford English Dictionary, “sanitation” has meant “the devising and application of means for the improvement of sanitary conditions” since at least 1848. As noted in Steven Johnson’s “The Ghost Map,” an early sanitation measure, following London’s cholera epidemic in 1854, involved keeping excrement out of the city’s drinking water at a time when disinfection was poorly understood.

Although Mizelle once called Justice Thomas “the greatest living American,” her mentor ought not be proud of his protégé’s handiwork. She accomplished the conservative movement’s long-sought policy objective – limiting the reach of federal administrative agencies – by consciously violating its avowed values: she disdained the original meaning of the statute, concealed critical language from her own sources, elevated her policy views over those of democratically accountable agencies and imposed an activist remedy. Principles, it seems, are only for the faint of heart.

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”