COVID-19 and January 6 events in retrospect


There are certain geopolitical events that define generations. In my lifetime, I think they would be the fall of the Soviet Union, 9/11, the election of President Obama, the election of President Trump, the COVID-19 pandemic, and January 6th. For previous generations, they would have been Watergate, the moon landing, the Kennedy assassination, Pearl Harbor, etc. These are moments in time that everyone remembers when they happened, and after they happen, people say things will always be different.

The Supreme Court, as a continuing institution, has had to discuss these epochal events in some form. Two cases decided during this period provide a glimpse into how the Court, and indeed history, will view the COVID-19 pandemic and January 6. In both cases, Murtha v. Missouri And Fisher v. United StatesThe court mentions each incident in a nonchalant manner.

At the height of the pandemic, Justice Breyer presented statistics about how many people might have died without various safety protocols. statueJustice Barrett's majority opinion barely mentioned why the Biden administration was pressuring social media companies to suppress certain messages. Even if Justice Barrett wasn't particularly sympathetic to the First Amendment claim, I get the clear sense that she thought the government's actions were unconscionable — especially with the benefit of hindsight. (We all remember how few people were wearing masks during his Rose Garden ceremony.)

and in FisherChief Justice Roberts called those who broke into the Capitol a “mob of supporters of then-President Donald Trump.” Just a “mob.” Not a mob of insurrectionists. Justice Jackson used slightly more forceful language—an “angry mob.” Justice Barrett simply called them a “mob of rioters.” Her language bears no resemblance whatsoever. Rebellion. (Sorry Will and Mike.)

If you had told me on January 7, 2021 that the Court would reference the pandemic and the election certification in such mild language, I would have been skeptical. But here we are. Disasters tend to fade as they fade into the rearview mirror. And despite everything that has happened over the last 3+ years, there is a very good chance that Donald Trump will be re-elected. Does anyone even remember his hasty impeachment after he left office? Does anyone even care about Section 3 anymore? (Sorry Will and Mike.)

So maybe I was wrong. Maybe the pandemic and January 6th were not generation-defining moments. These events were not the culmination of deep-rooted and long-standing social movements. Rather, they were sudden events, and ones that fizzled out after they were over. People seemed to have moved on from them.

I realize this is an apostrophe among law professors, but if Trump wins the election, President Biden (or whoever is in office at the time based on the Presidential Success Act or the 25th Amendment) must issue a full pardon. Practically speaking, it will make no difference whether the president issues such a pardon or not. On January 20, 2025, Trump will almost certainly fire the special counsel, instruct the attorney general to dismiss the prosecution, and perhaps even pardon himself. As for a pardon from Biden, at the very least, Trump would have to accept it — and perhaps people could view that acceptance as an act of repentance. That is how Gerry Ford viewed his decision to pardon Nixon. Trump cannot, however, reject the pardon, which would be a symbolic act in itself. If Biden loses, his political career will be over in some way, and he could shoulder the political burden.

The most difficult thing is whether the governor of New York will issue a pardon. I doubt it, but I think this sentence will have no effect until Trump completes his second term.

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