Judges reveal themselves in footnotes. They use citations as signals and shout-outs, displaying their predilections and alliances. When Anthony Kennedy and Stephen Breyer served on the Supreme Court, they would occasionally invoke judicial decisions in other countries, not because those rulings were binding in the United States but because they wanted to demonstrate their internationalist inclinations. Likewise, Edith Jones, a judge on the United States Court of Appeals for the Fifth Circuit, sent a message in a footnote in a 2022 opinion.
The Fifth Circuit, which hears appeals from Texas, Louisiana, and Mississippi, is one of thirteen federal courts of appeals: twelve regional courts and one for specialized issues like patent law. There are 179 seats on the circuit courts, and the judges have life tenure. Because the Supreme Court issues fewer than a hundred decisions a year, the circuit courts deliver the final word in tens of thousands of federal cases. The ideological preferences of these judges establish binding precedents for their states and help shape the law of the nation. Their words echo with authority.
The case on which Judge Jones was ruling in 2022 was straightforward. In March 2020 the town of Columbus, Mississippi, like many municipalities around the country, enacted an ordinance to address the Covid-19 pandemic. It required some local businesses, including the Golden Glow Tanning Salon, to close. In response, the salon’s proprietor sued the town for business losses. Because the laws were clear that Columbus had the right to enact the ordinance, the federal district judge in Aberdeen, Mississippi, threw out the lawsuit. Golden Glow then appealed to the Fifth Circuit.
In Jones’s opinion for a three-judge panel, she affirmed the district court’s decision—there was really no other choice—but she also took the opportunity to launch a politicized attack on the notion of shutdowns. “Subsequent experience strongly suggests,” she wrote, “that draconian shutdowns were debatable measures from a cost-benefit standpoint, in that they inflicted enormous economic damage without necessarily ‘slowing the spread’ of Covid-19.” She followed that sentence, with its contemptuous scare quotes around “slowing the spread,” with this footnote:
See Great Barrington Declaration, (last visited Oct. 24, 2022); Jonas Herby, Lars Jonung & Steve H. Hanke, A Literature Review and Meta-Analysis of the Effects of Lockdowns on Covid-19 Mortality, 200 Studs. in Applied Econs. 1 (2022); Alex Berenson, Unreported Truths about Covid-19 and Lockdowns
