The Volokh Conspiracy

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Justice Gorsuch on Title 42: "Even if the [APA] has taken a holiday during this pandemic, it cannot become a sabbatical."

With good reason, Justices Sotomayor and Kagan do not join Maskless Neil's dissent.


Today the Supreme Court issued an order in the Title 42 case. Title 42 refers to a series of orders that allow the federal government to deny entry to certain aliens to prevent the spread of a contagion (COVID-19). The scope of the order is very specific.

First, the Court stayed Judge Sullivan's nationwide vacatur of the Title 42 order. (For those curious, Judge Sullivan recently stepped down from the D.C. Judicial Nominations Committee–more on that later.) But the Biden Administration can still do stuff. What exactly? The Court explains:

This stay precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy.

Your guess is as good as mine as to what the emphasized portion means.

Second, the Court treated Arizona's application for a stay as a petition for a writ of certiorari. The case will be scheduled for oral argument in February 2023. To the Rocket Docket we go! I view all of these recent grants of cert before judgment as a response to the never-ending criticism of shadow docket emergency stays. And now, those same critics are criticizing the Court for granting cert before judgment. CBJ just doesn't have the same nefarious ring as shadow docket. Whatever. The Court can't win. I think the rocket docket is a far superior method of deciding emergency appeals. As a general matter, the Court should get back in the habit of deciding cases much quicker. Arguing a case in October and deciding it in June wastes everyone's time.

Third, the Court will only take briefing on the question of intervention. But the order basically calls out for briefing on the merits question:

The Court's review on certiorari is limited to the question of intervention. While the underlying merits of the District Court's summary judgment order are pertinent to that analysis, the Court does not grant review of those merits, which have not yet been addressed by the Court of Appeals.

The vote was 5-4. Justices Sotomayor and Kagan would have denied the stay. They didn't explain their reasoning. Justice Gorsuch wrote a two-page dissent, joined by Justice Jackson.

To understand Justice Gorsuch's dissent here, we need to flash back to the COVID-19 free exercise cases. During that period, Justice Gorsuch was the most aggressive Justice who opposed the lockdown orders. Indeed, Justice Gorsuch made headlines by not wearing a mask on the bench. Remember this gem from Gorsuch's concurrence in Roman Catholic Diocese from November 2020:

Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic's shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.

Here, let me rewrite this for Justice Gorsuch, circa December 2022:

Now, as we round out 2022, and face the prospect of entering a fourth calendar year living in the pandemic's shadow, the rationale in favor of Title 42 has expired to its own terms. Even if the Administrative Procedure Act has taken a holiday during this pandemic, it cannot become a sabbatical.

Justice Gorsuch's dissent today effuses this same antagonism of pandemic-related order.

The States may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view). But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life. . . .

For my part, I do not discount the States' concerns. Even the federal government acknowledges "that the end of the Title 42 orders will likely have disruptive consequences." Brief in Opposition for Federal Respondents 6. But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

Justice Jackson joined this dissent. And I'm sure critics of Title 42 will celebrate Gorsuch's vote. But Gorsuch's analysis here led him to oppose virtually every lockdown measure. Generally, those same critics were very much opposed to Gorsuch's rulings circa 2020. I think, with good reason, Justices Sotomayor and Kagan did not join this opinion. There is history there on the free exercise cases that Justice Jackson simply was not part of.