Supreme Court Justice Neil Gorsuch used a statement in a lawsuit over the Title 42 public health order to give a scathing overview of how civil liberties were trampled during the COVID-era — and the lessons that America could learn from 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,” the justice wrote.
“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.
Associate Justice Neil Gorsuch stands during a group photo at the Supreme Court in Washington, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool, File) (Erin Schaff/The New York Times via AP, Pool, File)
He then gave examples of how the U.S. 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,” he said.
He argued that decisions made through the legislative process are typically wiser than “decisions announced on the fly” and made by a few. He also suggested that officials at the state level reexamine the scope of emergency powers.
“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,” he said.