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Justice Gorsuch goes into beast mode over COVID restrictions

Justice Gorsuch wrote an opinion on Thursday in Arizona, et al. v. Mayorkas (2023), and we touched on it yesterday for the purpose of talking about how Ian Milhouse Millhiser was dragged for a comment and how his dumb comment allowed people to point out how many times Democrats had violated our civil liberties. And pointing at laughing at Millhiser is a good thing.

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Still, Justice Gorsuch’s opinion deserves a lot more attention. The essential Professor Eugene Volokh devotes an entire post quoting extensively from it, and we wouldn’t cut a word from that passage:

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.

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 [citing Aristotle’s Politics].

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.

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So, what was the case about? Well, we tend to agree with this guy:

The issues of the case were purely procedural, but tangentially related to the official end of the COVID emergency. Beyond that, we doubt it is terribly interesting outside of the legal community. What is more interesting is that searing indictment.

In any case, there was great rejoicing at Gorsuch’s opinion:

It’s amazing how much more sensible you get when you change ‘Ian Millhiser’ to ‘Ian Miller.’ Apparently, the extra ‘h-i-s’ in the name is the problem.

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And, of course, there were some people who don’t want to admit the COVID madness was all a mistake that we needed to learn from.

We are always amazed when someone actually uses that word. Do they actually use it in conversations? Do they also clutch pearls and/or drop monocles? Do they say ‘well, I never!’ in a huff? Inquiring minds and all that.

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Except that’s not a thing that happens in American law. If the baby is dead, it is not an abortion to remove it.

As for the people taking issue with Gorsuch’s statement that ‘Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country’ pointing to slavery or Jim Crow or other abuses, a few things to note.

First, he didn’t say it absolutely was the worst, only that it ‘may’ have been among the worst.

Second, let’s not forget what restrictions like the lockdowns were. Telling people that they are not allowed to leave their homes except to work, get food or other necessities? That’s almost exactly the same as what is colloquially called ‘house arrest’—a punishment often meted out to people convicted of a criminal offense. Oh, except under house arrest, you were still allowed to go to church and very often under COVID restrictions you weren’t.

And that is one form of restriction. Go and read his opinion and take a walk down memory lane on all the stuff they forced us to do and forbade us to do—except, of course, the people in power refused to live by their own rules.

So, while slavery was unquestionably worse for each person enslaved, these COVID restrictions were done to almost everyone at a time when the American population dwarfed the total number of people kept as slaves since the founding of the republic. We think comparisons of human misery is a bit like arguing about how many angels can dance on the head of a pin—basically it’s a profound waste of time—but there is a non-laughable argument that COVID restrictions were greater not in the amount of misery each person felt, but in the sheer number of people who felt that misery.

But we also suspect that the point of quibbling with that one line is about exactly that: Wasting everyone’s time, so no one actually goes and reads Gorsuch’s barn burner of an opinion.

For our part, we are reminded of Justice Robert Jackson’s brilliant dissent in Korematsu v. United States, 323 U.S. 214 (1944). That case involved one of those times when racist Democrats trampled on the civil liberties of Americans, this time the involving the internment of Japanese Americans during World War II. Horrified by a majority opinion that pretended there was nothing unconstitutional in locking up Americans for no other reason than their race or ethnicity, Jackson wrote this:

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Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

Fortunately, in the case of Korematsu, the decision became what we call an anti-precedent: A case influential in the sense that courts are repulsed by it, and are wary of doing something similar, again. Finally, in Trump v. Hawaii, 138 S. Ct. 2392 (2018), the Supreme Court took a moment to declare that Korematsu was overturned in an opinion by Chief Justice Roberts:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear— ‘has no place in law under the Constitution.’

Which would be much more meaningful if Roberts didn’t forget the lessons of Jackson’s dissent in Korematsu two years later during the pandemic.

(Special thanks to @SimonTemplarPV for helping us create the preview picture.)

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