By Peter Pinedo
Washington D.C., May 23, 2023 / 12:57 pm
Supreme Court Justice Neil Gorsuch blasted the COVID-19 emergency orders and lockdowns, calling them possibly “the greatest intrusions on civil liberties in the peacetime history of this country,” in a rare personal statement issued May 18.
Gorsuch, a Trump nominee, issued his statement in response to the Supreme Court’s decision in Arizona v. Mayorkas to deny certain states’ appeal to continue Title 42 restrictions on immigration, a decision with which he agreed.
In his statement, Gorsuch criticized states’ efforts to extend Title 42 despite the COVID emergency officially ending this month.
“I do not discount the States’ concerns about what is happening at the border, but the current border crisis is not a COVID crisis,” Gorsuch said, adding that the court’s December 2022 decision to extend Title 42 was a “serious misstep” because it prolonged “an emergency decree designed for one crisis in order to address an entirely different one.”
Extending Title 42, Gorsuch argued, made the Supreme Court complicit in a major “disruption” begun during the COVID pandemic in “how our laws are made and our freedoms observed.”
Unfettered, and sometimes even assisted by legislative and judicial authorities, both local and executive leaders across the country struck at Americans’ fundamental freedoms, Gorsuch said.
“Executive officials across the country issued emergency decrees on a breathtaking scale,” Gorsuch wrote. “Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions, too.”
Gorsuch also decried how authorities seemed to target churches during the pandemic, saying that “they surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct.”
Federal executive authorities also violated Americans’ fundamental freedoms, Gorsuch said.
“They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire noncompliant employees and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed,” Gorsuch wrote.
Gorsuch cited as an example Roman Catholic Diocese of Brooklyn v. Cuomo, in which a Catholic diocese sued then-New York Gov. Andrew Cuomo for targeting communities of faith by imposing especially strict rules on attendance.
At the time, Cuomo stated: “We know religious institutions have been a problem. We know mass gatherings are the super-spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks.”
In cases such as these, Gorsuch said, public authorities “forced individuals to fight for their freedoms in court.”
Gorsuch then appeared to call on Congress and state legislatures to “reexamine the proper scope of emergency executive powers.”
“While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress — the bodies normally responsible for adopting our laws — too often fell silent,” Gorsuch wrote.
The judicial system, too, shares some of the blame, according to Gorsuch.
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“Courts bound to protect our liberties addressed a few — but hardly all — of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes.”
“Many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces,” Gorsuch suggested.
“The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government,” Gorsuch cautioned. “However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.”
“Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate,” Gorsuch said.
Though he admitted that “decisive executive action is sometimes necessary and appropriate,” Gorsuch warned that “if emergency decrees promise to solve some problems, they threaten to generate others, and rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”
