*Slams Federal Judiciary’s Response to Pandemic Measures
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Justice Neil Gorsuch wrote an unusual solo opinion Thursday taking U.S. Supreme Court colleagues and other federal judges to task for allowing the government to “perpetuate” broad emergency powers during the COVID-19 pandemic.
Gorsuch’s extraordinary “statement” came in response to the Supreme Court’s decision to dismiss a dispute related to the since-terminated Title 42 border policy. The dismissal followed the Biden administration’s decision to end the public health emergency underlying the Title 42 policy, which allowed government officials to quickly turn away migrants and asylum seekers at the U.S.-Mexico border.
Gorsuch said he agreed with the court’s decision to drop the case. But in an eight-page opinion, he said government officials had used the pandemic to claim unprecedented power for themselves, and that members of the judiciary did little to stop them.
“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” Gorsuch wrote. “Executive officials across the country issued emergency decrees on a breathtaking scale. 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.”
The courts that are “bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them,” he said. “In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.”
Gorsuch said the pandemic has left the country with “many lessons.”
“One lesson might be this: Fear and the desire for safety are powerful forces,” he said. “They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat.”
Gorsuch, one of the leading skeptics of regulatory agencies on the current court, said people should be leery of “an expert who claims he can fix everything, if only we do exactly as he says.”
The Supreme Court had consistently rejected legal challenges to public health measures adopted during the pandemic before the death of Justice Ruth Bader Ginsburg in late 2020.
After her replacement by Justice Amy Coney Barrett, the court began taking a more skeptical view of restrictions on public gatherings for places of worship, and struck down the Biden administration’s sweeping vaccine-or-test mandate for large employers. The court also blocked the federal Centers for Disease Control and Prevention’s moratorium on evictions during the pandemic.
Currently, the court is considering whether the Biden administration can use the pandemic as a basis to forgive an estimate $435 billion in federal student loans held by millions of Americans.
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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