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 perspectives are.
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 established 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 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.
He recounted 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 wrote, “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 dropped a doozy:
“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”
Gorsuch elaborated 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 continued, 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 responses to Covid-19,
which killed more than 1.1 million people in the United States from March 2020 to May 2023 and remains among the leading causes of death.
But do those measures have a chance of being 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.