Uncommon pair of Supreme Court Justices agree in scathing Title 42 dissent: “We are a court of law…”

Following Chief Justice John Roberts’ temporary halt on the lifting of Title 42 last week, the Supreme Court issued a stay Tuesday until a case could be heard, and while most of the conservative justices agreed, one was joined by a progressive colleague as the uncommon pair slammed in dissent, “We are a court of law…”

The ongoing litigation of the expedited deportation measures set forth by Title 42 in response to COVID will continue into February after Roberts was joined by Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett in declaring a stay on the District Court’s ruling in the case of Arizona v. Alejandro Mayorkas, Secretary of Homeland Security. As written, the arguments are set to focus on the question, “Whether the State applicants may intervene to challenge the District Court’s summary judgment order.”

While the Chief Justice was willing to hear both sides on that matter, Justice Neil Gorsuch voted with the liberals in the 5-4 decision and included his thoughts on the matter in a dissent which was joined by Justice Ketanji Brown Jackson.

Gorsuch wrote, “The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible–at the very least during the pendency of our review.”

Supreme Court issues stay by National Content Desk

“For my part, I do not discount the States’ concerns. Even the federal government acknowledges ‘that the end of Title 42 orders will likely have disruptive consequences,” he conceded before adding, “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,” the justice insisted.

It is unclear whether or not Roberts may have agreed with Gorsuch on that point, but the Chief Justice did note, “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.”

Meanwhile, the White House pivoted to blaming Republicans as press secretary Karine Jean-Pierre issued a statement that argued, “To truly fix our broken immigration system, we need Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office. Today’s order gives Republicans in Congress plenty of time to move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.”

This, of course, was the same Jean-Pierre who adamantly proclaimed that “the border is not open.”


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