On Thursday, Justice Neil Gorsuch released his latest (and possibly final) cri de coeur against the pandemic-era restrictions that the government imposed to slow the spread of COVID-19. Gorsuch has long railed against such policies, and his opinions have taken on an increasingly shrill tone, like the Fox News–poisoned uncle who hectors you about the plandemic in 3,000-word Facebook comments. The justice’s rant in Arizona v. Mayorkas, however, hits a new low, moving beyond the usual yada-yada grievance parade to issue a thesis statement of sorts: “Since March 2020,” Gorsuch declared, “we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”
As Vox’s Ian Millhiser quickly pointed out, this sweeping claim leaves out two “intrusions on civil liberties” that any person with a basic grasp of history and sanity would surely rank as worse than pandemic policies: slavery and Jim Crow. During slavery, which was not only condoned but also practiced by Supreme Court justices, people of color were held in bondage; beaten, kidnapped, tortured, raped, and murdered; denied all civil rights, including freedom of speech and religion; denied the right to vote, participate in democracy, even claim American citizenship; robbed of their children; and barred from marriage—in short, denied life, liberty, and property without due process of law from birth until death. During Jim Crow, Black Americans were still subject to brutal, often lethal violence, both state-sponsored and vigilante; still denied the right to vote; still robbed of fundamental freedoms like speech and religion; still subjected to ruthless, degrading segregation in all public spaces; and still subject to severe economic exploitation, the effects of which endure today. These could certainly be described as “intrusions on civil liberties.”
I see four ways one might try to square Gorsuch’s declaration on Thursday with this horrific history. First, the justice may have meant what he said, and truly believes that COVID policies were a greater burden on civil liberties than slavery or Jim Crow. He does, after all, really hate wearing masks. Second, Gorsuch may have simply forgotten about the centuries-long subjugation of Black Americans (which originalists prefer to ignore, anyway). Third, he may have not considered these constitutionally sanctified, Supreme Court–sanctioned crimes against humanity as “civil liberties” abuses in the tradition sense; per this view, they were just the constitutional system at work as the founding generation might have envisioned. Fourth, he may have been attempting to cordon off the experiences of Black people and other historically abused minority groups as not having been a “collective” civil liberties intrusion experienced by all Americans (read: white Americans); note his choice of words in writing that “we” suffered civil liberties violations. A charitable reading might suggest that Gorsuch is speaking for well-off, middle-aged white men, whose privilege insulated them from adversity until that dark day in March 2020 when their local Buffalo Wild Wings shut its doors indefinitely.
If this last possibility sounds harsh, consider the broader myopia of the justice’s Thursday opinion, styled as a “statement.” He attached it to a case, Arizona v. Mayorkas, that dealt with red states’ attempt to maintain Title 42, a set of border restrictions once justified by COVID; since the pandemic is officially over, the court booted the case. Gorsuch used the decision as an excuse to list the manifold injustices that, to his mind, the government smuggled through in the name slowing the spread. Yet there’s not a word about the ways in which both the Trump and Biden administrations exploited Title 42 to prevent migrants fleeing persecution from seeking asylum in the U.S. (Gorsuch has frequently voted against asylum-seekers.) Nor is there any thought given to incarcerated people who were subjected to appalling, unhygienic conditions throughout the pandemic, a large number of whom were killed by the virus. (Gorsuch voted to block a lower court decision mandating safety measures for inmates.)
Instead, we hear the litany of more banal, low-stakes complaints. It is enlightening to set these gripes against the justice’s own jurisprudence to understand his idiosyncratic view of civil liberties. For instance:
• Gorsuch groused that the federal government attempted to “issue a vaccination mandate for most working Americans,” “threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement.” This evident concern of bodily autonomy was absent when the justice voted to overturn Roe v. Wade, allowing states to pass laws that prohibit patients from obtaining emergency abortions, forcing them to the brink of death before they may terminate a failing pregnancy.
• In a lengthy passage, Gorsuch cautioned that COVID-era “emergency decrees” could leave “all of us with a shell of a democracy”—or worse, an “autocracy” where “the wisdom of the whole of the American people” will no longer be heeded. This deep passion for democracy was utterly lacking when the justice gutted Section 2 of the Voting Rights Act, empowering state legislatures to pass voter suppression laws that prevent people of color from passing on their “wisdom” at the ballot box.
• Gorsuch fretted that pandemic restrictions shuttered “schools, public and private,” “closed churches,” and revoked “the right to worship.” We should assume these concerns are genuine. We should also ask, though, why the justice appears completely unperturbed by the epidemic of gun violence at schools and houses of worship, a crisis he has exacerbated by imposing a constitutional bar on even modest gun safety laws—perversely, in the name of protecting civil liberties. The freedom to obtain an education or attend religious services without being slaughtered by a weapon of war does not seem to rank highly in his mind.
At the end of his Arizona opinion, Gorsuch exhorted: “Decisions announced on the fly are rarely as wise as those that come after careful deliberation.” The same could be said of the justice’s own writing, never more so than here. With a little more time in the oven, it’s possible that Thursday’s “statement” might have solidified into a more defensible admonition against boundless deference to emergency powers, using the Title 42 saga as Exhibit A. What we got instead was an unintentionally revealing and rather embarrassing glimpse into the justice’s topsy-turvy hierarchy of rights and wrongs.
