J. Campbell Barker is a U.S. district judge by virtue of the last four years of jamming anyone with a law degree and an active FedSoc membership into a federal robe. Last week, Barker ruled that the federal eviction moratorium was invalid because rent — he reasoned — did not constitute economic activity. The opinion, drafted by a man named to the federal bench in his 30s, hangs its analytic hat on the notion that the federal government didn’t stop evictions during the Spanish flu epidemic so it lacks the power to do so here.
The tragicomedy of this opinion, arguing that rentals can never amount to interstate commerce went to lengths to blinker out the fact that the entire foundation of civil rights jurisprudence is based on the fact that renting rooms does, in fact, impact interstate commerce.
A federal mask mandate is certainly on iffy legal ground, as a general exercise of police power, but “don’t use the pandemic to exacerbate the economic downturn by tossing people on the street” is more than within the bounds of federal power. It’s why not even the Trump administration lawyers thought there was a problem with this — because even that band of misfits lacked the level of incompetence to write decades of jurisprudence out of existence. Did Judge Barker go out of his way to note in the fact section that COVID-19 is mostly harmless? Of course he did! Because that way he could focus his entire analysis on the economic impact of people moving between states and not on the impact homelessness has on institutionalizing temporary joblessness, nuking the national economic outlook.
That opinion wouldn’t register much import beyond being yet another milestone in the degradation of the federal court braintrust at the altar of the contemporary political whims of the Republican Party. It tugs a little harder on the gall-o-meter that a child judge is throwing Trump’s own policies under the bus solely to own the libs, but it’s not particularly shocking.
But it’s an interesting opinion to read in juxtaposition with this January opinion from Georgia state judge Dennis T. Blackmon. Where Barker shows willful ignorance of the basic science of the situation, Judge Blackmon expresses wisdom. When a mortgage company tried to repossess a mobile home, Judge Blackmon laid it out in plain terms:
This court finds that taking back a family’s trailer home on a contract is the same as evicting a tenant or foreclosing and taking possession of someone’s house. Everybody is just going to have to be patient and wait until the pandemic is over. This too shall pass. We must all accept the ephemerality of the human condition.
Judge Blackmon cites Woody Guthrie in his order, singing about wage earners finding themselves priced out of their homes. Because that’s the national economic crisis the federal government is trying to combat: it’s not just the unemployed who aren’t making payments right now, it’s workers who are keeping the economy afloat and struggling that can slip entirely out of the workforce if they lost their home during a temporary downturn. That’s why a national response to keep everyone housed where they are until this ends is an interstate economic imperative. It’s why a career slumlord didn’t stand in the way of a federal eviction moratorium from his own administration.
But that’s the difference between a career judge entering his 17th year on the bench who came at the job after years serving as a prosecutor, and a public defender, and in private practice. It’s not so much that Judge Blackmon has an ideological lean as much as he affirmatively doesn’t see his job as an ideological resume-builder. He’s there to adjudicate disputes fairly based on the law as it exists, not as shadowy handlers might want it to be.
When a tipster sent us the Blackmon opinion the other day I didn’t plan to write about it because it had happened back in January, but then I came across it again over the weekend while I was pondering Judge Barker’s mess. It’s quite the juxtaposition.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.