Brownstone Institute
Justice Neil Gorsuch Speaks Out Against Lockdowns and Mandates
In a statement made Thursday on a case concerning Title 42, Supreme Court Justice Neil Gorsuch breaks the painful silence on the topic of lockdowns and mandates, and presents the truth with startling clarity. Importantly, this statement from the Supreme Court comes as so many other agencies, intellectuals, and journalists are in flat-out denial of what happened to the country.
[T]he history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.
Since March 2020, we 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.
Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide.They used a workplace-safety agency to issue a vaccination mandate for most working Americans.
They threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.
While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent. Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.
Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study 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.
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. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes.
We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.
But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.
Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate. Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hopefully, we have relearned these lessons too.
In the 1970s, Congress studied the use of emergency decrees. It observed that they can allow executive authorities to tap into extraordinary powers. Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed.
At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order. In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.
Despite that law, the number of declared emergencies has only grown in the ensuing years. And it is hard not to wonder whether, after nearly a half-century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level.
At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. 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.
Justice Neil Gorsuch’s opinion in Arizona v. Mayorkas marks the culmination of his three-year effort to oppose the Covid regime’s eradication of civil liberties, unequal application of law, and political favoritism. From the outset, Gorsuch remained vigilant as public officials used the pretext of Covid to augment their power and strip the citizenry of its rights in defiance of long standing constitutional principles.
While other justices (even some purported constitutionalists) absconded their responsibility to uphold the Bill of Rights, Gorsuch diligently defended the Constitution. This became most apparent in the Supreme Court’s cases involving religious liberty in the Covid era.
Beginning in May 2020, the Supreme Court heard cases challenging Covid restrictions on religious attendance across the country. The Court was divided along familiar political lines: the liberal bloc of Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to uphold deprivations of liberty as a valid exercise of states’ police power; Justice Gorsuch led conservatives Alito, Kavanaugh, and Thomas in challenging the irrationality of the edicts; Chief Justice Roberts sided with the liberal bloc, justifying his decision by deferring to public health experts.
“Unelected judiciary lacks the background, competence, and expertise to assess public health and is not accountable to the people,” Roberts wrote in South Bay v. Newsom, the first Covid case to reach the Court.
And so the Court repeatedly upheld executive orders attacking religious liberty. In South Bay, the Court denied a California church’s request to block state restrictions on church attendance in a five to four decision. Roberts sided with the liberal bloc, urging deference to the public health apparatus as constitutional freedoms disappeared from American life.
In July 2020, the Court again split 5-4 and denied a church’s emergency motion for injunctive relief against Nevada’s Covid restrictions. Governor Steve Sisolak capped religious gatherings at 50 people, regardless of the precautions taken or the size of the establishment. The same order allowed for other groups, including casinos, to hold up to 500 people. The Court, with Chief Justice Roberts joining the liberal justices again, denied the motion in an unsigned motion without explanation.
Justice Gorsuch issued a one paragraph dissent that exposed the hypocrisy and irrationality of the Covid regime. “Under the Governor’s edict, a 10-screen ‘multiplex’ may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there,” he wrote. But the Governor’s lockdown order imposed a 50-worshiper limit for religious gatherings, no matter the buildings’ capacities.
“The First Amendment prohibits such obvious discrimination against the exercise of religion,” Gorsuch wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Gorsuch understood the threat to Americans’ liberties, but he was powerless with Chief Justice Roberts cowing to the interests of the public health bureaucracy. That changed when Justice Ginsburg died in September 2020.
The following month, Justice Barrett joined the Court and reversed the Court’s 5-4 split on religious freedom in the Covid era. The following month, the Court granted an emergency injunction to block Governor Cuomo’s executive order that limited attendance at religious services to 10 to 25 people.
Gorsuch was now in the majority, protecting Americans from the tyranny of unconstitutional edicts. In a concurring opinion in the New York case, he again compared restrictions on secular activities and religious gatherings; “according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians… Who knew public health would so perfectly align with secular convenience?”
In February 2021, California religious organizations appealed for an emergency injunction against Governor Newsom’s Covid restriction. At the time, Newsom prohibited indoor worship in certain areas and banned singing. Chief Justice Roberts, joined by Kavanaugh and Barrett, upheld the ban on singing but overturned the capacity limits.
Gorsuch wrote a separate opinion, joined by Thomas and Alito, that continued his critique of the authoritarian and irrational deprivations of America’s liberty as Covid entered its second year. He wrote, “Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner.”
Like his opinions in New York and Nevada, he focused on the disparate treatment and political favoritism behind the edicts; “if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.”
Thursday’s opinion allowed Gorsuch to review the devastating loss of liberty Americans suffered over the 1,141 days it took to flatten the curve.
From the Brownstone Institute
How many genuine, shocking – and unexposed – scandals actually occurred in the last four years? To partially answer this question, I composed another of my List Columns.
The Most Epic of Scandals Might Be…
The world’s most epic scandal might be the massive number of citizens who’ve died prematurely in the last four years. This scandal could also be expressed as the vast number of people whose deaths were falsely attributed to Covid.
My main areas of focus – “early spread” – informed my thinking when I reached this stunning conclusion: Almost every former living person said to have died “from Covid” probably did not die from Covid.
The scandal is that (unreported) “democide” occurred, meaning that government policies and deadly healthcare “guidance” more plausibly explain the millions of excess deaths that have occurred since late March 2020.
My research into early spread suggests that the real Infection Fatality Rate (IFR) of Covid should have already been known by the lockdowns of mid-March 2020.
If, as I believe, many millions of world citizens had already contracted this virus and had not died, the Covid IFR would be the same, or perhaps even lower, than the IFR for the common flu – said to be 1 death per 1,000 infections (0.1 percent).
Expressed differently, almost 100 percent of people who contracted this virus did not die from it – a fact which could and should have been known early in the “pandemic.” The fact this information was concealed from the public qualifies as a massive scandal.
Evidence That Would ‘Prove’ This Scandal
Furthermore, one does not need early spread “conjecture” to reach the conclusion that only a minute number of people who were infected by this virus later died from Covid.
After April 2020, a researcher could pick any large group or organization and simply ascertain how many people in these groups later died “from Covid.”
For example, more than 10,000 employees work for the CDC. About 10 months ago, I sent an email to the CDC and asked their media affairs department how many of the CDC’s own employees have died from Covid in the past three-plus years.
This question – which would be easy to answer – was never answered. This example of non-transparency is, to me, a massive “tell” and should be “scandalous.”
To be more precise, if the CDC could document that, say, 10 of their employees had died from Covid, this would equate to a disease with a mortality risk identical to the flu.
My strong suspicion is that fewer than 10 CDC employees have died from Covid in the last four years, which would mean the CDC knows from its own large sample group that Covid is/was not more deadly than influenza.
I’ve performed the same extrapolations with other groups made up of citizens whose Covid deaths would have made headlines.
For example, hundreds of thousands if not millions of high school, college, and pro athletes must have contracted Covid by today’s date. However, it is a challenge to find one definitive case of a college or pro athlete who died from Covid.
For young athletes – roughly ages 14 to 40 – the Covid IFR is either 0.0000 percent or very close to this microscopic fraction.
One question that should be obvious given the “athlete” example is why would any athlete want or need an experimental new mRNA “vaccine” when there’s a zero-percent chance this disease would ever kill this person?
The scandal is that sports authorities – uncritically accepting “guidance” from public health officials – either mandated or strongly encouraged (via coercion) that every athlete in the world receive Covid shots and then, later, booster shots.
Of course, the fact these shots would be far more likely to produce death or serious adverse events than a bout with Covid should be a massive scandal.
More Scandals
Needless to say, all the major pediatrician groups issued the same guidance for children.
In Pike County, Alabama, I can report that in four years no child/student between the ages of 5 and 18 has died from Covid.
I also recognize that the authorized “fact” is that millions of Americans have now “died from Covid.” However, I believe this figure is a scandalous lie, one supported by PCR test results that would be questioned in a world where investigating certain scandals was not taboo.
Yet another scandal is that officials and the press de-emphasized the fact the vast majority of alleged victims were over the age of 79, had multiple comorbid conditions, were often nursing home residents, and, among the non-elderly, came from the poorest sections of society.
These revelations – which would not advance the desired narrative that everyone should be very afraid – are similar to many great scandals that have been exposed from time to time in history.
Namely, officials in positions of power and trust clearly conspired to cover up or conceal information that would have exposed their own malfeasance, professional incompetence, and/or graft.
This Might Be the No. 1 Scandal of Our Times
As I’ve written ad nauseam, perhaps the most stunning scandal of our times is that all-important “truth-seeking” organizations have become completely captured.
At the top of this list are members of the so-called Fourth Estate or “watchdog” press (at least in the corporate or “mainstream” media).
In previous articles, I’ve estimated that at least 40,000 Americans work as full-time journalists or editors for mainstream “news organizations.” Hundreds of MSM news-gathering organizations “serve” their readers and viewers.
In this very large group, I can’t think of one journalist, editor, publisher, or news organization who endeavored to expose any of the dubious claims of the public health establishment.
When 100 percent of professionals charged with exposing scandals are themselves working to conceal shocking revelations…this too should qualify as a massive scandal.
To the above “captured classes” one could add college professors and administrators, 99 percent of plaintiffs’ trial lawyers, 100 percent of CEOs of major corporations, almost all elected politicians, and, with the exception of perhaps Sweden, every one of the public health agencies in the world, plus all major medical groups and prestigious science journals.
Or This Might Be Our Greatest Scandal
Yet another scandal – perhaps the most sinister of them all – would be the coordinated conspiracy to silence, muffle, intimidate, bully, cancel, demonetize, and stigmatize the classes of brave and intelligent dissidents who have attempted to reveal a litany of shocking truths.
The Censorship Industrial Complex (CIC) is not a figment of a conspiracy theorist’s imagination.
The CIC is as real as Media Matters, News Guard, The Trusted News Initiative, the Stanford Virality Project, and the 15,000-plus “content moderators” who probably still work for Facebook.
Government officials in myriad agencies of “President” Joe Biden’s administration constantly pressured social media companies to censor content that didn’t fit the authorized narrative (although these bullying projects didn’t require much arm-twisting).
Here, the scandal is that the country’s “adults in the room” were identified as grave threats to the agenda of the Powers that Be and were targeted for extreme censorship and punishment.
When people and organizations principled enough to try to expose scandals are targeted by the State and the State’s crony partners, this guarantees future scandals are unlikely to be exposed…which means the same unexposed leaders are going to continue to inflict even greater harm on the world population.
This Scandal Is Hard to Quantify
Other scandals are more difficult to quantify. For example, it’s impossible to know how many citizens now “self-censor” because they know the topics they should not discuss outside of conversations with close friends.
This point perhaps illustrates the state of the world’s “New Normal” – a now-accepted term that is scandalous if one simply thinks about the predicates of this modifier.
It should be a scandal that the vast majority of world citizens now eagerly submit to or comply with the dictates and speech parameters imposed on them by the world’s leadership classes.
The “New Normal” connotes that one should accept increasing assaults on previously sacrosanct civil liberties.
What is considered “normal” – and should now be accepted without protest – was, somehow, changed.
As I routinely write, what the world has lived through the past four-plus years is, in fact, a New Abnormal.
This Orwellian change of definition would qualify as a shocking scandal except for the fact most people now self-censor to remain in the perceived safety of their social and workplace herds.
The bottom line – a sad one – might be that none of the above scandals would have been possible if more members of the public had been capable of critical thinking and exhibited a modicum of civic courage.
As it turns out, the exposure of scandals would require large numbers of citizens to look into the mirror (or their souls) and perform self-analysis, an exercise in introspection that would not be pain-free.
It’s also a scandal our leaders knew they could manipulate the masses so easily.
Considering all of these points, it seems to me that the captured leadership classes must have known that the vast majority of the population would trust the veracity of their claims and policy prescriptions.
That is, they knew there would be no great pushback from “the masses.”
If the above observation isn’t a scandal, it’s depressing to admit or acknowledge this is what happened.
To End on a Hopeful Note
What gives millions of citizens hope is that, belatedly, more citizens might be growing weary of living in a world where every scandal cannot be exposed.
Donald Trump winning a presidential election by margins “too big to steal” is a sign of national hope.
Mr. Trump nominating RFK, Jr. to supervise the CDC, NIH, and FDA is definitely a sign of hope, an appointment that must outrage and terrify the world’s previous leadership classes.
For far too long, America’s greatest scandal has been that no important scandals can be exposed. Today, however, it seems possible this state of affairs might not remain our New Normal forever.
Republished from the author’s Substack
Author
From the Brownstone Institute
“Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health”
Didn’t give much thought to freedom until four years ago, at age 63. Freedom was just there, like the water surrounding a goldfish. And then the Covid-19 pandemic blew in, the world locked down, and admonitions to “stay the ‘$^#&’ home” blazed through social media. No freedom was too important to discard in the name of public safety: jobs, family businesses, artistic endeavours, public meetings, social connections that kept despair at bay, all took a backseat to the grim business of saving grandma (who ended up getting Covid anyway). No discussion of moral or practical trade-offs, no pushback from the press, nothing. It felt wrong to me on a cellular level.
Apparently I was the only one in my middle-class liberal circle to harbour misgivings about this astonishing new world. If I tried, ever so timidly, to articulate my concerns on Facebook or Twitter, the online warriors shot back with a string of epithets. “Go lick a pole and catch the virus,” said one. “Crawl back into your cave, troglodyte,” said another. And my all-time favourite: “You’re nothing but a mouth-breathing Trumptard.”
From the get-go, I perceived Covid as more of a philosophical problem than a scientific one. As I wrote on more than one occasion, science can inform our decisions, but not dictate them. What ultimately powers our choices are the values we hold. I saw Covid as a morality play, with freedom and safety cast as the duelling protagonists, and it looked like safety was skipping to an easy victory.
It was a heady time for the health bureaucrats, whose increasingly arcane rules betrayed a naked impulse to control: the Canadian high-school students required to use masks on both their faces and their wind instruments during band practice, the schoolchildren forced (for hygiene reasons) to study on their knees for hours in an Alaska classroom, the “glory-hole” sex advised by the British Columbia Centre for Disease Control. The lack of public pushback against these absurdities heightened my awareness of the fragility of our freedoms.
One of the earliest memes to surface during the pandemic was “muh freedumb.” The locution became a shorthand for a stock character – a tattooed man wearing camo gear and a baseball cap, spewing viral particles while yelling about his rights. A selfish idiot. The memes kept coming: “Warning, cliff ahead: keep driving, freedom fighter.” “Personal freedom is the preoccupation of adult children.” Freedom, for centuries an aspiration of democratic societies, turned into a laughing stock.
Eventually, pro-freedom voices began trickling into the public arena. I wasn’t alone, after all. There were others who understood, in the words of Telegraph writer Janet Daley, that the institutional response to Covid-19 had steamrolled over “the dimension of human experience which gives meaning and value to private life.” Lionel Shriver decried how “across the Western world, freedoms that citizens took for granted seven months ago have been revoked at a stroke.” And Laura Dodsworth brought tears to my eyes when she wrote, in her 2021 book A State of Fear, that she feared authoritarianism more than death.
Once the vaccines rolled out, the war on freedom of conscience went nuclear. If you breathed a word against the products, or even the mandates, you were “literally killing people.” The hostility towards the “unvaxxed” culminated in a Toronto Star front page showcasing public vitriol, splashed with such sentiments as: “I honestly don’t care if they die from Covid. Not even a little bit.”
This, too, felt viscerally wrong. I knew several people who had refused the vaccine, and they all had well-articulated reasons for their stance. If they didn’t fully trust the “safe and effective” bromide recycled by all government and pharmaceutical industry spokespeople, I could hardly blame them. (And I say this as someone who writes for Big Pharma and got five Covid shots.)
One of the most deplorable casualties of Covid culture was freedom of expression, a core principle in the United Nations’ Universal Declaration of Human Rights. Experts speaking publicly about the harms of lockdown faced systematic ostracism from mainstream media, especially left-wing news outlets. By early 2021, Human Rights Watch estimated that at least 83 governments worldwide had used the Covid-19 pandemic to violate the lawful exercise of free speech and peaceful assembly.
“Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health,” the group wrote in a media release. “The victims include journalists, activists, healthcare workers, political opposition groups, and others who have criticized government responses to the coronavirus.”
But what about misinformation? Doesn’t it kill people? Newsflash: misinformation has always existed, even before TikTok. It’s up to each of us to sift the credible folks from the cranks. The best defence against misinformation is better information, and it’s the policy wonks’ job to provide it. Modern science itself depends on this tug-of-war of ideas, which filters out weaker hypotheses and moves stronger ones ahead for further testing.
Besides, misinformation comes not just from cranks, but from “official sources” – especially those tasked with persuading the public, rather than informing it. Remember when Rochelle Walensky, former director of the Centers for Disease Control and Prevention in the US, asserted that “vaccinated people do not carry the virus?” Or when Anthony Fauci maintained that getting vaccinated makes you a “dead end” in the chain of transmission? I rest my case.
The marketplace of ideas is like a souk, with a lot of hollering and arguing and the odd snatched purse – and that’s exactly how it should be. It’s an ingenious and irreplaceable process for getting to the truth. There are few ideas too sacrosanct to question or too ridiculous to consider. That’s why, unlike just about everyone in my left-leaning circle, I take no issue with Elon Musk’s shakedown of the old Twitter, now the Wild West of X.
Under Musk’s algorithms, my feed has become a true philosophical souk, with wildly disparate views smashing into each other, leaving me to sift through the rubble in search of a gold nugget or two. Love him or hate him, Musk offers a much-needed counterweight to the ideological lockstep in much of the mainstream media. And when it comes to free speech, Musk has put his money where his mouth is: when media personality Keith Olbermann recently hopped on X, where he boasts a million followers, to call for Musk’s arrest and detainment, Musk made no move to censor him. Works for me.
While the “old normal” has thankfully returned to our daily lives, save the odd mask in a shopping mall or subway car, the stench of censorship that blew in with the pandemic has yet to dissipate. An obsession with disinformation permeates the zeitgeist, spurring lawmakers in several Western countries to censor the flow of thoughts and ideas that gives a free society its pulse.
We cannot excise personal freedom from a democratic society, even in the interests of the “public good,” without poisoning the roots of democracy itself. Article 3 of UNESCO’s 2005 Universal Declaration of Bioethics and Human Rights states this plainly: “The interests and welfare of the individual should have priority over the sole interest of science or society.” In our post-pandemic reality, the statement seems almost quaint. Nonetheless, it expresses an enduring truth: that a democracy must never discard the idea of freedom – even in a pandemic.
Freedom desperately needs a comeback from its current incarnation as an expendable frill. In my own small way I’m trying to make this happen: never much of an activist before Covid, I’m now part of a small group preparing to launch a Free Speech Union in Canada, modelled after the highly successful one in the UK. The organisation will offer legal advice to individuals facing censorship, cancellation, or job loss because of their words. I look forward to supporting people caught in this anti-freedom web, including those whose words I heartily disagree with.
My newfound respect for free speech is also what propels me to keep talking about Covid. The response to the pandemic exceeded the bounds of public health, and we need to expose the forces that drove it. Here’s Daley again: “The world went crazy. There is no other way to account for what was an almost nihilistic dismantling not just of particular liberties and rights, but of the very idea of liberty.” We can’t let it happen again.
Republished from Perspective Media
Author
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