The Supreme Court today ruled in the matter of a New York eviction moratorium which might be instructive as to what their ultimate holding in regard to the federal eviction moratorium might be.

The Court ruled 6-3, in an unsigned opinion, with the three liberals dissenting, on an application from landlords asking for an injunction pending disposition of the appeal on the merits.

From The Hill:

The ruling temporarily lift s part of New York’s policy, which had precluded landlords from challenging a tenant’s self-certified claim of financial hardship, an attestation that had automatically paused eviction proceedings under the policy. But the order does not interfere with a tenant’s ability to mount a so-called “hardship defense” in an eviction court proceeding.

The court’s unsigned order will remain in place while a legal challenge plays out in a New York-based federal appeals court. In it, the majority wrote that the New York policy appeared to violate landlords’ due process right to a hearing in the face of a tenant’s claimed inability to pay rent.

“This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” they wrote.

Justice Stephen Breyer, who wrote the dissent, said the law wasn’t clear and that the policy was set to expire within three weeks anyway.

The policy meant that a renter simply had to say that they had suffered hardship and it would stop the eviction without any requirement of proof and without giving the landlord any ability to respond. Landlords said that deprived them of due process. So the decision stopped that, although it allowed a tenant to be able to present evidence in an eviction court proceeding.

While every case has its own particular fact pattern, it does show that the Court does not feel constrained in ruling against at least part of a moratorium. It also then means that that ban is temporarily lifted in New York at least in terms of people who do not mount a hardship defense in an eviction court proceeding. There are likely more moratorium decisions coming.

There were already indications that the Court might be inclined to rule against the federal moratorium as a result of the decision that it made on an application to vacate a stay on the federal eviction moratorium in June. While the majority voted to keep the stay in place, with Justice Brett Kavanaugh concurring, Kavanaugh indicated that he would have found it unconstitutional and it is believed that the four members of the conservative wing of the court would have agreed since they voted to vacate the stay, although they did not rule on the merits. Kavanaugh only went with the majority because he said that the federal moratorium would be expiring on July 31, which it did. But Joe Biden’s CDC issued a new moratorium order. That new order is presently being considered in federal district court after the landlord group who challenged it filed an emergency petition to stop it.