Justice Gorsuch's Conspiracy-Theory-Adjacent Rant About COVID Restrictions

 by Michael C. Dorf

My Verdict column on Friday praised Justice Gorsuch for the sensitivity towards animal welfare that he demonstrated in his lead opinion in National Pork Producers Council v. Ross. Because the universe has a sense of humor, naturally, just a few hours after that column posted, Justice Gorsuch showed that, while he occasionally provides pleasant surprises, more often the surprises, not to mention the predictable decisions are, shall we say, not so pleasant. 

In Arizona v. Mayorkas, the Supreme Court vacated the DC Circuit’s decision denying various red states' motion to intervene and ordered that court to dismiss the case--which involves the so-called Title 42 policy at the border--as moot. Justice Jackson briefly noted that she wouldn’t have vacated the lower court ruling but didn’t disagree with the conclusion that there’s nothing left to decide, in light of the ending of the COVID emergency and the Title 42 policy.

Justice Gorsuch added a “statement.” Its ostensible point is that the Trump and Biden administrations kept the Title 42 policy in effect well beyond any plausible basis for it. After all, even by the spring of 2020, it was apparent that COVID was widespread in the United States, so that people crossing the border from Mexico were not likely to have more than a negligible impact on the nation’s public health. It was clear for three years that COVID was being used as a pretext--first by the Trump administration and then by the states that sued the Biden administration to keep the Title 42 policy in effect--for keeping asylum seekers and other migrants from gaining entry to the country. And the SCOTUS order temporarily freezing the status quo kept the pretextual policy in place for months.

Justice Gorsuch could have stopped there. If he had, his statement would have been entirely fair and appropriate. But he didn’t stop. Rather, he went on for another four-and-a-half pages to rant against all manner of COVID emergency measures, including: stay-at-home orders; vaccine mandates; limits on gatherings, especially as applied to worship services; and “censorship” of “debate” about “public policy.”

Do you remember how we experienced censorship as part of the pandemic? No? Neither do I. Maybe that’s because we didn’t.

Justice Gorsuch first intimates that he has followed Donald Trump and Elon Musk down the rabbit hole of conspiracy theories when he says that “it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.” Seems. May have. Notably, that conditional language disappears just a couple of paragraphs later when he worries about a frightened public acceding to actual censorship.

Even with the "seems" and "may have" qualifiers, Justice Gorsuch's statement is at best extremely misleading. He cites exactly one source for his accusation: a NY Times story from this February that reports that in July 2021 the Surgeon General warned that COVID misinformation leads to avoidable illnesses and death, urging “the nation’s social media giants to do more to fight the sources of it.”

Yet warnings and urgings from the Surgeon General are not undue “pressure” in any sense that implicates the free speech rights of the intended audience for the warnings and urgings; much less are they censorship. For decades and by law, cigarette packages and advertisements have contained health warnings from--guess who?--that's right, the Surgeon General. One of those warnings urges behavior. It says: "Quitting Smoking Now Greatly Reduces Serious Risks to Your Health." Does Justice Gorsuch think that such warnings "pressure" people to give up smoking? Is all government speech undue pressure?

Hold on. Maybe Justice Gorsuch thinks that government warnings implicate the First Amendment only when they urge people not to say certain things, as opposed to urging people not to engage in various forms of non-expressive conduct, like smoking. Yet even that narrower formulation is plainly inconsistent with all manner of official advice. For example, you have a right to wear a jacket bearing the word "fuck" in a courthouse. Nonetheless, the First Amendment doesn't forbid the posting of a sign urging people to "use respectful language."

Meanwhile, the NY Times story Justice Gorsuch cites also reports that the Attorneys General of Louisiana and Missouri sued Biden administration officials over what they claimed was censorship, but the story also notes--as Justice Gorsuch does not--that the evidence is the exact opposite: that the social media algorithms amplified rather than suppressed COVID conspiracy theories of the sort Justice Gorsuch thinks are super-important to public debate.

Given that the Times story debunks the allegations that Justice Gorsuch leans on to support his claim that fearful Americans are meekly accepting censorship, why didn’t he simply cite the complaint from the lawsuit itself? In March of this year, that lawsuit mostly survived a defense motion to dismiss when the forum-shopped Trumpy district judge dismissed the claims for injunctive relief but permitted the claims for declaratory relief to proceed. So why didn't Justice Gorsuch go directly to that lawsuit as his source, rather than citing a Times story that specifically contradicts the claims of censorship?

The answer could be that it's inappropriate for the Supreme Court to cite as authority a case that might come before it in a later incarnation. But while that's inappropriate, it happens with some regularity. So we need to look for a further explanation.

Perhaps Justice Gorsuch didn't directly cite the complaint in the case itself because it is, to use the technical legal term, batshit rightwing-nut crazy. It repeatedly refers to the Biden administration as “the Left.” In addition to complaining about the supposed pressure campaign to suppress anti-vax disinformation, it also complains about supposed suppression of (false) claims by Donald Trump and his allies about voter fraud. And it’s especially adamant about supposed suppression of anti-mask speech.

In light of Justice Gorsuch’s own notorious facial activism, it seems that he may have wanted to avoid too obviously relying on tinfoil-hat-style allegations. However, by laundering the conspiracy-theory-peddling lawsuit through a NY Times story that by its own terms calls bullshit on the claims of censorship, Justice Gorsuch sabotages his own allegation of censorship--at least for anyone not too lazy to click on the link he helpfully provided.

Justice Gorsuch's statement also complains about the proliferation and persistence of emergency declarations. That’s a perfectly legitimate concern. He’s right that Congress’s effort to rein in emergency actions has been a failure. But his lament that we have become a nation of Chickens Little rings hollow, for Justice Gorsuch is a veritable ostrich with respect to COVID.

Near the end of Justice Gorsuch’s statement, he acknowledges that "decisive executive action is sometimes necessary and appropriate." Yet nowhere in that statement does he say--and he apparently doesn’t think--that a pandemic caused by a novel virus that ended up killing over a million Americans and that sickened millions more was the sort of crisis calling for such decisive executive action. He refers to Americans' overreactions to a "perceived threat," implying (even if not coming right out and saying) that he thinks the perception with respect to COVID was inaccurate from the start.

Am I being unfair? Is it possible to read Justice Gorsuch’s statement as objecting to the fact that the decisive actions were taken by local, state, and federal executive officials rather than by state legislatures and Congress? That theme does appear in the statement, but it hardly exhausts the complaint. Justice Gorsuch surely would not be willing to accept what he deems censorship and denials of the free exercise of religion if they emanated from the proper branch of government. His tirade sounds in liberty, not simply in checks and balances.

Justice Gorsuch's statement terms the collection of orders comprising the US COVID response “the greatest intrusions on civil liberties in the peacetime history of this country." That assertion echoes Justice Alito's November 2020 speech at the Federalist Society national convention in which he called COVID-related government actions "previously unimaginable restrictions on individual liberty," adding: "We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020."

I guess it depends on who "We" are. This is a country in which millions of human beings were lawfully enslaved their entire lives--including during peacetime. And while I do not deny that the COVID restrictions were indeed a very serious intrusion on liberty, it's a little hard to take seriously paeans to liberty offered by Justices who enthusiastically nullified a nearly-fifty-year-old precedent recognizing the freedom not to be forced to endure the bodily burdens of pregnancy and birth.

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We sometimes say that various conservative Justices have a "libertarian streak," and because there is more than a little overlap between libertarianism and civil liberties, progressive civil libertarians can craft arguments that occasionally appeal to conservative libertarians. But let's not kid ourselves. The libertarianism of the conservative Justices only fortuitously and occasionally overlaps with the cause of civil liberties.

In 2008 Justice Scalia, without intended irony, complained that the Supreme Court's ruling that Gitmo detainees had a constitutional right to file habeas corpus petitions "would almost certainly cause more Americans to be killed;" just two weeks later the Court released his majority opinion holding, for the first time, that the Second Amendment confers an individual right to possess the firearms that Americans use to kill themselves and each other by the thousands each year.

The libertarian streak of some conservative Justices is increasingly indistinguishable from the highly selective libertarianism of the partisan right. It concerns itself with freedom to practice and even impose traditional religion; freedom to own and use all manner of firearms; freedom from vaccination; and, under the guise of free speech and anti-wokeness, freedom from criticism and social pressure for right-wing trolls.