Justice Gorsuch: Thoughts About the Response to COVID-19

by Justice Neil Gorsuch

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

US Supreme Court Justice Neil Gorsuch

Federal executive officials entered the act too. 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.

While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent. Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.

Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. 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. 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. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.

But maybe we have learned another lesson too. 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.

In the 1970s, Congress studied the use of emergency decrees. It observed that they can allow executive authorities to tap into extraordinary powers. Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed. At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order. In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.

Despite that law, the number of declared emergencies has only grown in the ensuing years. And it is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level. 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.

The author is a  United States Supreme Court Justice.

Categories: Commentary

6 replies »

  1. Is anyone else aware of how many court cases the supreme court failed to hear that involved those mandates?

    To hear this now is upsetting to say the least.

  2. I know for a fact a private business/corporation can violate civil rights and violate federal law (Title 42) and the State of Vermont will do absolutely nothing. The position is if it has anything to do with COVID-19, the healthcare community can lie, deceive, and break the law with impunity. The State supports it, condones it, participates in it, and provides cover for all of it. Collusion, fraud, corruption, and criminality – that is our state of the State.

  3. “greatest intrusions on civil liberties in the peacetime history of this country”. Really? What about slavery? Jim Crow laws? In many states an HOA can put a lien on your house, which you own, for having the wrong color paint. There’s civil forfeiture in the state of Vermont for law enforcement – your personal property can be seized merely under suspicion of a crime.

    Justice Gorsuch has proven himself to be concerned with the plight of American Indians, yet they were forcibly removed to reservations, exterminated, and enslaved. How could he make the statement that COVID restrictions were more egregious than that?

  4. Much as I like a conservative court and Justice Gorsuch, I suggest he strayed into an unfortunate rhetorical excess. Does he really mean that Covid restrictions were more of an affront to civil liberties than…..

    – lynchings of Black Americans post civil war era?
    – confinement of Japanese Americans post Pearl Harbor?

    -denial of the right to vote for women from the foundation of the Republic until the early 20th century?

    – deprivation of civil rights for Black Americans from before the founding of the nation into modern times ?

    – kidnapping and enslavement of millions of African persons and their descendants for generations?

    – the exploitation of women trapped as sex slaves?

    – systematic economic inequality based on race, sex, national origin, religion, etc.

    Perhaps the good Justice might recalibrate his rhetoric!

  5. I personally don’t think this matters relates to all of the civil liberty violations throughout America since the signing of the constitution. Those mentioned above were the results of turbulent times and during periods when information moved slow as well as the lack of national intelligence.

    The civil liberties violations just experienced were committed by greed, lies, censorship and possibly a motive to depopulate a few million people. The virus may have been intentionally released, we just don’t know because the coverup is in process now. Also billions of dollars if not trillions were thrown around by the government to make things worse.

    The pharmaceutical companies have lied and tried to bury their the documents for 75 years when most of us would be gone. The whole thing snowballed form the initial two weeks of lock downs. The police were empowered to arrest people for not doing what the government said.

    While the atrocities committed prior to the scamdemic were horrible, this period involved the whole world. It wasn’t certain groups being targeted, it was everyone. The scale of violations is much worse. Perhaps Gorsuch should have compared other violations to what he was saying.

    What happened in the courts related to mandates is similar to what happened related to the 2020 election. With mounds of evidence to look at, the courts turned their heads and refused to see. Maybe Gorsuch is reminding us that not everything can be controlled by the courts. Two branches of the government were in on both, the pandemic and the election. So where does that leave us? 85%of the country acted like sheep headed to the slaughter, they didn’t rebel. Those that did were called names but stood strong. Maybe people should understand that there is a time when nothing works and doing nothing might get you killed. Our trust in government, our health providers, the media, big pharma and whoever else supported this travesty is gone. Maybe Mr. Gorsuch is saying there’s a time that the people must act in their own defense. I think we just went through that time and most people blinked.

  6. How smart hindsight makes us. the medical profession told lies and scared us all into submission, Elected officials and their police, drunk with power or in fear forced, us into silly and useless compliances. We did whatever the puppet masters dictated. And it was used to steal elections right before our eye and with our approval. Have we learned anything?