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Neil Gorsuch implies COVID restrictions were worse than slavery and Jim Crow, and the internet noticed.

Elura NanosMay 19th, 2023, 4:07 pm
 
Associate Justice of the Supreme Court Neil Gorsuch

Associate Justice of the Supreme Court Neil Gorsuch walks the halls of the Supreme Court building in November 2020, wearing a mask. (Photo by Andrew Harnik/Pool/Getty Images)

Supreme Court Justice Neil Gorsuch is getting dragged on social media following the justice’s eight-page statement on the Supreme Court’s dismissal of an immigration case in which Gorsuch decried COVID-19 restrictions as “the greatest peacetime intrusions on civil liberties in American history” — with no mention of American slavery or Jim Crow laws.

The case was Arizona v. Mayorkas, a challenge to a Trump-era immigration policy known as Title 42, which empowered the Centers for Disease Control and Prevention (CDC) to stop individuals from entering the United States as public health regulation during the COVID-19 pandemic. The harsh policy, which expelled asylum-seekers from the U.S.-Mexico border without further proceedings, was criticized by immigration advocates as inhumane and dangerous for those most needing safe haven in the U.S.

The Biden administration allowed Title 42 to expire on May 11, which precipitated decisions by some cities to bus migrants to hotels within their jurisdictions.

Before Title 42 expired, a group of Republican-led states attempted to insert themselves in litigation to defend the policy. A procedural dispute arose over the states’ right to intervene in the lawsuit, but given that the policy has now expired, the Supreme Court dismissed that dispute as moot in a brief unsigned order Thursday afternoon.

Gorsuch authored his statement regarding the Court’s order Thursday in which he railed against executive branch officials for issuing the emergency decrees, lawmakers for being “silent,” and judges for not doing enough to intervene.

Gorsuch faulted his fellow justices for taking the “serious misstep” of allowing the case “to manipulate [the Court’s] docket” and chastised proponents of Title 42 for using legal authority “designed for one crisis in order to address an entirely different one.”

“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” wrote Gorsuch before listing the many ways COVID-19 restrictions deprived Americans of their individual freedoms.

As if cataloging the safety measures put into place during the unprecedented pandemic for future generations, Gorsuch recalled:

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. They threatened violators not just with civil penalties but with criminal sanctions too. 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. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.

Gorsuch continued, spreading the blame not only among overzealous officials on the local level but also at the federal level. He mentioned landlord-tenant regulations, workplace safety rules, vaccination mandates, requirements for service members and pressure on social media companies.

“Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it,” Gorsuch wrote as he warned against allowing would-be autocrats to use fear to usurp power in the name of public crisis.

“A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force,” the Donald Trump appointee wrote. “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.”

Gorsuch continued his warning, hypothesizing that a complacent society “will accede to the loss of many cherished civil liberties” and “forfeit our personal freedoms” by disregarding procedural rules.

“Of course, this is no new story,” said Gorsuch. “Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.”

He continued, mounting vehement opposition to both oligarchy and autocracy:

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.

 According to Gorsuch, the real risk lies in the use of “emergency decrees,” which “have a habit of long outliving the crises that generate them.”

“And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow,” the justice ended sternly.

Gorsuch’s words warning against autocracies recall a common theme of criticisms levied against the president who appointed him.

Law professor Rick Weinmeyer noted in a tweet, “This writing by Justice Gorsuch sounds (at least to me) like he’s slamming Trump, but . . . [enormous sigh] . . . no: He’s talking about COVID emergency orders.”


During his single-term presidency, Trump faced widespread derision for issuing executive orders that attempted to exceed the scope of his presidential authority and for arguing that he was entitled to unfettered executive privilege in various contexts.

Gorsuch, however, confined his eight-page lament of “intrusions on civil liberty” to restrictions geared toward mitigating the effects of the COVID-19 virus, which has been responsible for the deaths of over 6 million people.

Likewise, Vox’s Ian Millhiser called Gorsuch’s characterization of COVID-19 measures “profoundly ignorant” and suggested that the justice be given a book on slavery or Jim Crow laws.

Human rights lawyer Qasim Rashid  called out Gorsuch’s statement: “White wealth privilege is ignoring 400 years of Native genocide, 265 years of Black slavery, & 99 years of Jim Crow—but lamenting 1 year of PTO during COVID.”


Others pointed to Gorsuch’s vote to overturn Roe v. Wade as a more recent example of widespread restriction of civil liberties.


In his statement, Gorsuch ignored history or context for civil liberties deprivations as he declared pandemic lockdowns “the greatest peacetime intrusions on civil liberties in American history.”

Gorsuch, not typically known for hyperbolic language in his opinions, has often recounted relevant history when it supports his argument.

For example, in 2022, Gorsuch dissented from a ruling allowing states concurrent jurisdiction with the federal government to prosecute crimes on Native lands. At the time, Gorsuch recounted Oklahoma’s history of subjecting Native American children to “predatory guardianships” and committing “legalized robbery” by seizing their property.

Gorsuch slammed the majority opinion in the case, saying, “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.” Yet, Gorsuch was willing to award pandemic lockdowns the disfavored title of “the greatest peacetime intrusions on civil liberties in American history” without referencing his often-spotlighted treatment of Native Americans.

Gorsuch has been habitually hostile to COVID-19 measures, including those far outside the realm of immigration restrictions. In one 2021 dissent, the justice compared Catholics who oppose vaccines they believe are derived from aborted fetuses to Jehovah’s Witnesses who declined to pledge their allegiance to the U.S. flag. Early in the same year, Gorsuch broke with the Court’s majority to denounce COVID-19 restrictions against unmasked singing in church.

Gorsuch also made headlines for his pandemic practices. In early 2022, he appeared for oral arguments noticeably bare-faced and without a mask — while Justices Stephen Breyer and Sonia Sotomayor (83 years old and a 67-year-old Type 1 diabetic, respectively) opted to dial into proceedings for their safety.

 

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Elura Nanos - Columnist & Trial Analyst, Law & Crime; CEO Lawyer Up

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos

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