Featured Image
United States Supreme Court Associate Justice Neil GorsuchAlex Wong/Getty Images

WASHINGTON, D.C. (LifeSiteNews) — U.S. Supreme Court Justice Neil Gorsuch delivered a blistering rebuke on Thursday of the lockdown and mandate policies adopted by many states and the federal government in response to the advent of COVID-19, arguing that authorities exploited the pandemic to expand their own power at the expense of constitutional liberties.

On May 18, the Supreme Court issued a brief order announcing the removal from its calendar a lawsuit concerning Title 42, a federal public health authority that facilitates quick deportation of illegals during a pandemic. Former President Donald Trump invoked it during the last year of his term, but the Biden administration announced in April 2022 plans to end the policy, prompting lengthy pushback.

But the official end of the COVID public health emergency last month triggered the end of emergency measures such as Title 42 as well, prompting the Supreme Court to issue what amounts to a housecleaning statement providing for final dismissal of the case as moot.

But while the order itself was insubstantial, attached to it was an eight-page statement by Gorsuch, one of Trump’s three nominees to the nation’s highest court, concerning how the “history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.”

“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” he 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. 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.”

“Federal executive officials entered the act too,” he continued. “Not just with emergency immigration decrees. They 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 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.”

The jurist went on to fault Congress, state legislatures, and courts across the nation for failing to intervene against these actions, and courts for in some cases “allow[ing] themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.”

Gorsuch identified several lessons of the pandemic response, including the power of “fear and the desire for safety,” the allure of a “leader or an expert who claims he can fix everything, if only we do exactly as he says,” and how little it can take for people to cede “many cherished civil liberties” and to “willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree.”

“But maybe we have learned another lesson too,” 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. 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.”

He closed by observing that emergency decrees tend to far outlive the emergencies for which they are invoked and their frequency has only grown over the years despite Congress adopting safeguards in the form of the National Emergencies Act, potentially necessitating review of those safeguards.

“It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level,” Gorsuch wrote. “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. 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. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”

A wealth of evidence indicates that the restrictions on personal and economic activity of 2020 and part of 2021 caused far more harm than good, in terms of not just economics but also public health, and that lives could have been saved through far less burdensome methods, such as the promotion of established therapeutic drugs, narrower protections focused on those most at risk, such as the elderly and infirm, and increasing vitamin D intake.

In the face of all this, the Supreme Court itself has faced its own accusations of inaction, particularly in the area of state-level COVID vaccine mandates, which Trump-appointed Justices Brett Kavanaugh and Amy Coney Barrett have joined the court’s liberals in letting stand. In 2021, Gorsuch and fellow conservative Justice Samuel Alito took the unusual step of criticizing their colleagues for lacking the “fortitude” to resolve controversial issues and being “unwilling to … bear” the criticism that taking a stand would elicit.