Justice Neil Gorsuch’s latest break with the US Supreme Court conservative majority appears rooted in his consistent opposition to government pandemic restrictions.
Legal scholars suggest the Trump-appointee’s rebuke of the court’s decision Tuesday ordering pandemic-era border curbs to remain in place was targeted at the health-related aspect of the immigration policy.
“Gorsuch has been hostile to every single Covid lockdown measure since 2020. Every single one, and this is simply an extension of his hostility to that,” said Josh Blackman, a law professor at South Texas College of Law Houston.
Gorsuch and liberal Justice Ketanji Brown Jackson formed an unusual alliance in opposing the order leaving restrictions along the southern border in effect while the matter is litigated further. A rule known as Title 42 lets the government use the health emergency to quickly expel people, some of whom would be eligible for asylum.
Conservative-led states opposed plans by the Biden administration to let the measure expire, saying doing so would produce an unmanageable surge of migrants.
The majority in the 5-4 decision didn’t explain its reasoning, but Gorsuch faulted his fellow conservatives for using a public heath provision to address broader immigration issues. Jackson joined Gorsuch’s dissent, unlike the other justices in the minority, Elena Kagan and Sonia Sotomayor.
“The current border crisis is not a COVID crisis,” Gorsuch wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
Gorsuch is a reliable conservative, but he’s broken occasionally with his fellow Republican-appointed colleagues in siding with liberals on certain criminal and tribal matters. Gorsuch stood out vividly in 2020 when his majority decision in Bostock v. Clayton County jolted conservatives. He crossed the ideological divide in ruling that federal law protects gay and transgender workers from job discrimination.
On the pandemic, Gorsuch has opposed federal attempts to impose broad vaccine mandates, notably a Biden administration rule that would’ve required shots or regular tests for millions of employees of large businesses. He’s also sided with conservatives in voting against a military related vaccine requirement, and would’ve blocked a federal moratorium on evictions the divided court refused to lift in 2021.
Blackman also pointed to a 2020 concurrence in a case involving Covid-19 restrictions and the rights of religious entities in which Gorsuch similarly criticized pandemic policies.
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch wrote in 2020. The same reasoning was present in Gorsuch’s dissent on Tuesday with respect to the Administrative Procedure Act, Blackman said.
As on Tuesday, Gorsuch’s language in the majority or in dissent can be blunt. And he’s also previously rejected government warnings of severe civil and criminal consequences should the court rule a certain way.
For example, Gorsuch dismissed Oklahoma’s fear of a public safety catastrophe in 2020’s McGirt v. Oklahoma. The decision Gorsuch wrote, which was joined by the court’s then four liberals, held that the state couldn’t prosecute American Indians for certain crimes committed on tribal land.
John Malcolm, vice president for the Institute for Constitutional Government at the conservative Heritage Foundation, said he wasn’t surprised by Gorsuch’s dissent this week given his history of siding with the court’s liberals in cases like McGirt and Bostock.
“He’s a very independent minded justice who has no problems about joining with the liberal wing,” Malcolm said.
Court watchers also said the dissent could be a preview to how Gorsuch comes down on the Biden administration’s massive student loan forgiveness plan.
Challengers to the program say the administration is relying on the pandemic as a pretext for debt relief to achieve a campaign goal. The government, however, says the program would alleviate financial problems that arose during the pandemic.
“At least part of what’s going on here is setting up sort of a consistent skepticism of especially federal reliance on Covid,” said Stephen Vladeck, a law professor at The University of Texas at Austin.
The justices are scheduled to hear student loan arguments in February after delaying the initiative this year.
No matter how the Title 42 case winds up, Gorsuch said in his dissent that the health emergency behind the policy’s creation has “has long since lapsed.”
—With assistance from John Crawley, Greg Stohr and Kimberly Robinson.
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