COVID emergency orders are among `greatest intrusions on civil liberties,’ Justice Gorsuch says

By MARK SHERMAN
Associated Press

WASHINGTON (AP) — The Supreme Court got rid of a pandemic-related immigration case with a single sentence.

Justice Neil Gorsuch had a lot more to say, leveling harsh criticism of how governments, from small towns to the nation’s capital, responded to the gravest public health threat in a century.

The justice, a 55-year-old conservative who was President Donald Trump’s first Supreme Court nominee, called emergency measures taken during the COVID-19 crisis that killed more than 1 million Americans perhaps “the greatest intrusions on civil liberties in the peacetime history of this country.”

He pointed to orders closing schools, restricting church services, mandating vaccines and prohibiting evictions. His broadside was aimed at local, state and federal officials — even his colleagues.

“Executive officials across the country issued emergency decrees on a breathtaking scale,” Gorsuch wrote in an eight-page statement Thursday that accompanied an expected Supreme Court order formally dismissing a case involving the use of the Title 42 policy to prevent asylum seekers from entering the United States.

The policy was ended last week with the expiration of the public health emergency first declared more than three years ago because of the coronavirus pandemic.

From the start of his Supreme Court tenure in 2017, Gorsuch, a Colorado native who loves to ski and bicycle, has been more willing than most justices to part company with his colleagues, both left and right.

He has mainly voted with the other conservatives in his six years as a justice, joining the majority that overturned Roe v. Wade and expanded gun rights last year.

But he has charted a different course on some issues, writing the court’s 2020 opinion that extended federal protections against workplace discrimination to LGBTQ people. He also has joined with the liberal justices in support of Native American rights.

When the omicron variant surged in late 2021 and early 2022, Gorsuch was the lone justice to appear in the courtroom unmasked even as his seatmate, Justice Sonia Sotomayor, who has diabetes, reportedly did not feel safe in close quarters with people who were not wearing masks.

So Sotomayor, who continues to wear a mask in public, did not take the bench with the other justices in January 2022. The two justices denied reports they were at odds over the issue.

The emergency orders about which Gorsuch complained were first announced in the early days of the pandemic, when Trump was president, and months before the virus was well understood and a vaccine was developed.

The thrust of his complaint is not new. He has written before in individual cases that came to the court during the pandemic, sometimes dissenting from orders that left emergency decrees in place.

The justices intervened in several COVID-related cases.

With Gorsuch and five other conservatives in the majority, they ended the eviction moratorium and blocked a Biden administration plan to require workers at larger companies to be vaccinated or wear a mask and submit to regular testing. Once Amy Coney Barrett joined the court, after Ruth Bader Ginsburg died, they ended restrictions on religious services in some areas.

By a 5-4 vote from which Gorsuch and three conservative colleagues dissented, the court allowed the administration to require many health care workers to be vaccinated.

But on Thursday, Gorsuch gathered his complaints in one place, writing about lessons he hoped might be learned from the past three years.

“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,” he wrote.

Another possible lesson, he wrote: “The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government.”

He also had strong words for the Republican-led states that tried to keep the Title 42 policy in place, and the five conservatives justices whose votes extended the policy five months beyond when it would have otherwise ended in late December.

“At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another,” Gorsuch wrote.

In the final paragraph of his statement, Gorsuch acknowledged, but only grudgingly, that emergency orders sometimes are necessary. “Make no mistake — decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others,” he wrote.