The Supreme Court dismissed the case on Title 42

The Supreme Court on Thursday rejected a bid by Republican-led states to maintain the pandemic-era immigration measure known as Title 42.

Summary order of the court One sentence was long, instructing the appeals court to deny the states’ request to intervene in the case. The move was almost certainly prompted by the end of the health emergency used to justify Title 42.

In A brief was filed in FebruarySolicitor General Elizabeth B. Preloger told the court that “absent other relevant developments, the conclusion of a public health emergency (among other consequences) would terminate the Title 42 mandates and proceed with this case.”

In a sign that the court wanted to agree, it canceled arguments in the case a week later.

Title 42 allowed the expedited removal of immigrants who qualified for asylum at the border with Mexico. The policy, introduced by the Trump administration in March 2020, has been used to deport immigrants — including many asylum seekers — about 2.5 million times. The action was lifted on May 11.

What the court agreed to decide, and now won’t do, is whether the states that sought to keep the measure in place have standing to continue their challenge. Mrs. Prelogger wrote in February, “The impeachment of the underlying case will also preclude petitioners from intervening.”

Judge Katanji Brown Jackson declined on Thursday, saying he would have most likely arrived at the same place by taking a slightly different route by dismissing the case as “premeditated.”

Justice Neil M. Gorsuch used the occasion to issue an eight-page reflection on “the disruptions we’ve experienced over the past three years in how our laws are made and our liberties maintained,” referring to the pandemic.

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Judge Gorsuch, along with Judge Jackson, issued a dissent in December when the court agreed to hear the case.

The legal question on which the Court acknowledged states’ intervention, he wrote at the time, “is of no special importance in its own right and does not ordinarily warrant speedy review.”

By preempting that question, the Court effectively took a wrong position, at least temporarily, on the larger issue in the case: whether the pandemic justified immigration policy.

“The current border crisis is not a Covid crisis,” Judge Gorsuch wrote. “Courts should not perpetuate executive orders designed solely for an emergency because elected officials fail to address a different emergency. We are a court, not policymakers of last resort.

In his statement Thursday, Justice Gorsuch made some more general observations about the pandemic’s impact on the rule of law.

“Since March 2020, we have experienced perhaps the largest incursions on civil liberties in this country’s peacetime history,” he wrote. “Administrative authorities across the country issued emergency orders on a breathtaking scale. Governors and local leaders imposed curfews and forced people to stay in their homes. They closed businesses and schools, public and private. They closed churches but allowed casinos and other favored businesses to continue.

He added that “social media companies may have been pressured by federal authorities to suppress information about pandemic policies they disagreed with.”

The lesson, Justice Gorsuch wrote, is that “fear and the will to protect are powerful forces,” and “even the ancients warned that democracy degenerates into autocracy in the face of fear.”

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He concluded that courts should be cautious. “At the very least,” he wrote, “by allowing litigants to manipulate our docket to uphold a mandate designed for one emergency in another, we can hope that the Judiciary will not allow itself to be part of the problem again soon.”

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