Justice Neil Gorsuch recently issued what was sort of a concurring opinion, but was really an irrelevant personal libertarian diatribe, in an immigration case. In his opinion he wrote about Covid policies, saying that “we may have experienced the greatest intrusion on civil liberties in the peacetime history of this country.” The opinion was unnecessary, and in my opinion egregiously one-sided and wrong.
The case in which Justice Gorsuch issued his opinion/diatribe was a challenge to Title 42’s Covid emergency deportation authority, created during the Trump Administration and authorizing immediate deportation of illegal immigrants. The idea was we could expedite the removal of immigrants so they couldn’t spread Covid. With the end of the Covid emergency, as recently declared by President Biden, the emergency deportation order also came to an end. Therefore the challenge was moot. Simple enough, right? That should have been the end of it.
But Justice Gorsuch used the dismissal as an opportunity to deliver a political speech utterly inappropriate for a Supreme Court justice, and constituting 100% dicta. He said, among other things: “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.” He went on from there. You get the idea.
It is certainly true that the scope of Covid shutdown and other orders was broad. I remember asking myself whether some of Governor Cuomo’s orders here in New York could be challenged as unauthorized. Think about the Executive Order on remote notarization among other things. Few challenges were brought and even fewer were successful. In large measure we accepted the necessity of the emergency decrees.
It is also true that reasonable persons could argue about the scope and efficacy of some of the orders, as one would expect in any emergency response to a public health threat. But it seems inarguable that the orders were issued in good faith, intended to prevent the spread of a dangerous and deadly disease which had morphed into a pandemic.
We all know that Justice Gorsuch views himself as a bit of a libertarian, something of a myth from the Mountain West (although his home state of Colorado is at best purple rather than red, and almost all of its population lives in an urban corridor that sits at the eastern edge of the Rockies). So what our libertarian justice is really advocating for here is the right to infect one another. And that’s just not the society we live in.
I have a distant cousin who also prides himself on being a libertarian, as well as full-on MAGA. “Nobody’s going to make ME get a vaccine.” Justice Gorsuch in his “opinion” also criticizes vaccine mandates. So what happened when my cousin inevitably contracted Covid? He almost died. He spent two months in the ICU and another four months after that in the hospital, at a cost of literally millions of dollars. And no health insurance. Who do you think paid for that? You and I did. The costs weren’t assessed against him, like a true libertarian free market economics approach would require. We don’t make people die like that. Again that’s just not the society we live in.
What an actual libertarian approach of the sort urged by Justice Gorsuch would require is that individuals who make choices must also suffer and accept the consequences of their choices, and absorb the resulting costs. For my cousin that would have to be “I elected not to get a vaccine, and not to have health insurance. I got very sick as a result. I have to die now.” Is that really what Justice Gorsuch wants?
My cousin is better now, although he still doesn’t recognize the error of his ways. He doesn’t feel even the slightest bit guilty about the millions of dollars that others paid on his behalf to restore his health. Justice Gorsuch is just as misguided as my cousin.
Richard P. Swanson
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