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By Jamelle Bouie
The justices of the Supreme Court aren’t always open about their views, but there are times when they inadvertently reveal just how skewed their perspective is.
First, a little background. Last year, the Biden administration announced it would end its predecessor’s pandemic-era policy of expelling asylum-seekers at the Mexican and Canadian borders based on a federal law that gives the Centers for Disease Control and Prevention the power to bar entry into the United States in order to curtail the spread of infectious diseases. Title 42, as the policy came to be known, was supposedly implemented to protect the public. But by the time it came into effect, Covid-19 was already widespread, and there was no evidence of significant transmission by asylum seekers and other migrants. What was true is that President Donald Trump had devoted much of his time in office to dismantling the nation’s immigration system and limiting entry as much as possible from the southern border.
Several months after the administration announced its plan to end Title 42, a Federal District Court in Washington ruled that the policy was illegal and ordered the government to end it. A group of states with Republican attorneys general then sued to keep the policy in place, appealing their case to the Supreme Court. The dispute came to an end last week, when the Supreme Court remanded the case back to a lower court with instructions to dismiss the motion as moot. The reason, presumably, is that the federal government had already ended the Covid-19 public health emergency. There was nothing to decide.
There was, however, something interesting about the court’s order in this case. Not content to let the instruction stand on its own, Justice Neil Gorsuch added a statement. Gorsuch recounts the story of the Title 42 policy, not to criticize the court’s decision but to emphasize what in his view was the defining aspect of the Covid-19 crisis.
“The history of this case,” Gorsuch writes, “illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.” It’s at this point that Gorsuch drops a doozy: “Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”
Gorsuch elaborates on the point: “Executive officials across the country issued emergency decrees on a breathtaking scale” and “Governors and local leaders imposed lockdown orders forcing people to remain in their homes.” They shuttered businesses and schools, he continues, and “threatened violators not just with civil penalties but with criminal sanctions too.”
Now, there obviously was — and still is — a debate to have about the extent of the state, local and federal response to Covid-19, which killed more than 1.1 million people in the United States between March of 2020 and May of 2023 and remains among the leading causes of death. But do those measures have a chance of representing the “greatest intrusions on civil liberties in the peacetime history of this country?”
Consider the competition. Were Covid restrictions a greater intrusion on civil liberties than the forced sterilization of more than 70,000 Americans under the eugenic policies of state and local governments across the country from the 1920s through the 1970s? The mass surveillance of thousands of Americans involved in liberal and left-wing politics by the federal government during the 1960s? The McCarthyite purges of thousands of Americans accused of “un-American activities” in the 1950s? The “Palmer Raids” of 1919 and 1920, in which federal agents arrested thousands of Americans on flimsy evidence with plans to deport them from the country?
That’s just the 20th century. When we look back to the 19th century, we see even more egregious peacetime assaults on the rights and liberties of Americans. Beginning in the 1890s, for example, Southern legislatures began to strip voting and civil rights from huge swaths of their states’ populations. Then there’s labor conflict. In 1877 alone, state, local and federal strikebreakers killed more than 100 people engaged in strikes and protests against railroads across the country.
Of course, any catalog of 19th-century attacks on civil liberties would be incomplete without a mention of slavery, in which millions of Americans were reduced to chattel by force of law for the better part of a century under the Constitution. And to protect and preserve the social order produced by the mass enslavement of millions of people, slaveholding states passed draconian limits on speech, from outlawing the circulation of antislavery materials to banning abolitionist speech outright.
It is certainly possible that even judged against the full weight of American history, the Covid restrictions on in-person gatherings represent an exceptional and egregious assault on civil liberties. But I’m skeptical.
What is interesting to think about, however, is what it says about Justice Gorsuch that those restrictions loom so large in his historical imagination. Perhaps they conflict with his occasional libertarian streak. Perhaps he is, like his colleague Samuel Alito, deeply offended by rules that put limits on religious services but allowed people to shop at grocery stores. Or perhaps he just didn’t think of those other historical examples at all.
In which case, Gorsuch’s denunciation of pandemic restrictions acts as an inadvertent glimpse into his view of the United States. With one notable exception (and it is quite notable) — the history of Native Americans — he is willing to ignore or doesn’t even see our long, peacetime history of repression and internal tyranny. What he seems to see instead is a long history of liberty with some significant exceptions, including our recent experience with the pandemic.
It is a shocking worldview but not, in the end, a surprising one. A justice like Gorsuch who frequently struggles to see injustice and cruelty in the present — from his votes in favor of capital punishment to his vote to let states curb women’s bodily autonomy — will surely struggle to see injustice and cruelty in the past.
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