Is Justice Gorsuch Actually Right About Something?

As democracies around the world lean into autocracy, it is noteworthy when ideological adversaries can agree on this very clear and present danger

I never thought I’d say this, but I agree with Justice Gorsuch.

Some background: On May 18, 2023, the Supreme Court dismissed as moot litigation by a group of Republican-led states (the “petitioners”) to prevent the Biden administration from rolling back Title 42, the public health law used by the Trump administration to keep the U.S.-Mexico border essentially closed to asylum seekers. The issue became moot when the administration lifted the COVID-19 public health emergency on May 11; by operation of law, the application of Title 42 to halt border entries automatically ended when the official emergency declaration was lifted.

The Court’s dismissal was non-substantive and did not address the merits of the litigation.  Technically, the Court denied the petitioners’ motion to intervene in the litigation and remanded the case to the U.S. Court of Appeals for the District of Columbia with instructions to dismiss the motion as moot. Justice Jackson dissented, also on a technical ground, stating that she would instead have dismissed the writ of certiorari (i.e., the Court’s decision to hear the petitioners’ motion in the first place) as improvidently granted.

This is how these types of dismissals usually go. The Court’s order, which is not signed by any particular member(s) of the Court, doesn’t delve into the specific underlying issues, as is usual when it dismisses a case. Moreover, normally if members of the Court disagree with the majority decision, they might write their own concurring or dissenting opinion.

A Statement About COVID-19 Restrictions and Civil Liberties

This time, however, we see something new. Justice Gorsuch had something to get off his chest, and so he issued a “statement” that was published along with the Court’s brief order. I can’t say for sure that this is unprecedented, but I can’t recall ever having seen such a statement before. (Readers, if you know of other examples, please let me know in a comment.)

The crux of Justice Gorsuch’s statement is that it was inappropriate for the federal government to use a public health statute (Title 42) to address a completely unrelated issue, namely, a perceived migration crisis at the border. Moreover, he believes that “the Court took a serious misstep when it effectively allowed nonparties to this case to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one.”

He goes on to make sweeping statements with which I fundamentally disagree about state and federal decrees during the height of the COVID-19 pandemic. “Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” he writes, referring to the various emergency decrees that shut down businesses, schools and religious gatherings to varying extents around the country.  I think reasonable minds can continue to debate whether government responses to COVID-19 were appropriate, and there are lessons to be learned—for example, on the impact on children of up to two years of interrupted schooling—that I hope we can apply in the future. But as opinion columnist Jamelle Bouie writes in the New York Times, calling COVID-19 restrictions the greatest intrusion on civil liberties in our country’s peacetime history is ahistorical hyperbole at best. Says Bouie:

Consider the competition. Were Covid restrictions a greater intrusion on civil liberties than the forced sterilization of more than 70,000 Americans under the eugenic policies of state and local governments across the country from the 1920s through the 1970s? The mass surveillance of thousands of Americans involved in liberal and left-wing politics by the federal government during the 1960s? The McCarthyite purges of thousands of Americans accused of un-American activities in the 1950s? The Palmer Raids of 1919 and 1920, in which federal agents arrested thousands of Americans on flimsy evidence, with plans to deport them from the country?

And this is just the 20th century. What about the 19th century assaults on voting rights? The brutal repression of the labor movement? What about slavery?

Looking at Gorsuch’s record on the Supreme Court, his votes in favor of capital punishment, and his vote allowing states to curb women’s bodily autonomy, might be considered by some to have more of a negative impact on citizens’ basic civil liberties than the recent pandemic-related restrictions. Says Jamelle Bouie: “[Gorsuch] is willing to ignore or doesn’t even see our long, peacetime history of repression and internal tyranny. What he seems to see instead is a long history of liberty with some significant exceptions, including our recent experience with the pandemic.”

Quite frankly, I think that is how a lot of Americans see our history—that the repression is the exception rather than the rule.

A Relevant Message of Warning

So what did I find to agree with in Gorsuch’s recent statement? It is his basic message about how power can be misused in times of national emergency.

Gorsuch is critical not only of the “emergency immigration decrees” issued during the Trump administration. He also mentions that executive branch officials “deployed a public-health agency to regulate landlord-tenant relations nationwide.  They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They … may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.”  Even the nation’s courts “allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.”

All of this leads to the lesson he hopes we have learned from this chapter in our history.

One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.

If we didn’t learn this lesson after earlier examples of repression and tyranny in our country, I’m skeptical about whether we will learn it now.  But some of Gorsuch’s words are well worth heeding, regardless of our overall political leanings.

The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. 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. Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hopefully, we have relearned these lessons too.

Do I even perceive some veiled criticism of Donald Trump in particular? Note, however, that Gorsuch’s argument about the legislative process assumes that legislatures are representative bodies, unaffected by the partisan gerrymandering that has put state legislatures in Republican hands when they could not get the votes.

Justice Gorsuch is fundamentally, historically and almost laughably wrong in suggesting that COVID-related restrictions constituted the greatest intrusions on civil liberties in the peacetime history of this country. But he is right that the danger of creeping autocracy in this country is real.