Why Supreme Court Justice Brett Kavanaugh May Have Final Say On Eviction Moratorium

The U.S. Supreme Court will be reviewing President Joe Biden’s eviction moratorium in the coming days and Associate Justice Brett Kavanaugh is poised to be the key vote.

The extension of a moratorium on evictions was announced by the Centers for Disease Control and Prevention (CDC) on Aug. 3 and the Biden administration has already asked that justices preserve it.

Property owners have rejected this, arguing that they are being made to pay their own expenses for months as millions of Americans have been unable to meet rent payments during the COVID-19 pandemic. Lawyers representing the landlords argued that the administration risked a dramatic overreach of its own authority under the guise of public health concerns.

The Biden administration countered that the Delta variant’s emergence has upped the urgency for an extension on the eviction moratorium. In its own filing, the U.S. Department of Justice argued that the pandemic has changed “unexpectedly, dramatically, and for the worse” as the spread of Delta continues.

The court previously upheld the administration’s initial extension in June, but only by a bare 5-4 majority. At the time, Kavanaugh sided with the majority but hinted that his support may not be there if the issue returned to the court’s agenda.

In the only concurrent opinion submitted after that case, Kavanaugh explained that he only supported the extension because it was about to expire. Instead, he warned that it was his view that the CDC "exceeded its existing statutory authority" and would require "clear and specific congressional authorization" to continue.

This view may not bode particularly well for the administration in its hopes to keep large numbers of Americans in their homes amid a surge of new Delta cases. It also has taken on particular resonance within the progressive wing of President Biden’s Democratic Party, with members staking out strong positions on this particular issue.

Rep. Cori Bush, D-Mo, who slept outside the U.S. Capitol as part of a solidarity sit-in with Americans at risk of an eviction earlier this month, took to Twitter to emphasize the paramount importance of the issue.

“11 million people will face eviction if the Supreme Court blocks the eviction moratorium extension,” Bush wrote on Tuesday. “It’s a simple choice: Uphold the moratorium or put the lives and livelihoods of millions at risk.”

Pressure from Bush and other Democrats played a part in Biden’s choice to extend the moratorium on Aug. 3. The move was described as “targeted” at evictions in counties with high transmission rates of COVID-19. This ended up including a majority of U.S. counties, according to the CDC’s own transmission data tracker.

The initial moratorium on evictions began last year under former President Donald Trump. After a freeze passed by Congress had expired, Trump ordered the CDC to issue its own last July to prevent evictions. For its part, the Biden administration requested that Congress issue its own moratorium extension after the Supreme Court upheld the initial extension in June, but to no avail.

A study from the Aspen Institute released last August found that up to 40 million Americans were at risk of being evicted from their homes. This impact would be especially borne by communities of color, who were found more likely than white Americans to lose their homes during the pandemic.

As of May, CNBC reported an estimated nearly 11 million Americans were behind on their rent and facing possible eviction.