Gorsuch: 'The Current Border Crisis Is Not a COVID Crisis'

"We are a court of law, not policymakers of last resort," Supreme Court Justice Neil Gorsuch wrote, as he and the court's three liberal justices disagreed with the court's other five justices, who said Title 42 should remain in place at the southwest border while the justices review a lower court ruling ending the public health measure.

Title 42 has been used to quickly expel some migrants without a hearing since March 2020, when the federal Centers for Disease Control and Prevention said illegal migration posed a serious danger of introducing a communicable disease.

On Tuesday, the Supreme Court ordered oral arguments in the case to take place in the court's February session, to determine if the states can intervene to block the lower-court ruling lifting Title 42. The order said the court's review focuses only on "the question of intervention," and not on the "merits" of the case, which have not yet been addressed by a federal appeals court.

In his dissent from Tuesday’s order, Gorsuch said the states have come to the Supreme Court, "seeking two things."

First, he said, the states want an expedited review of the lower-court's intervention, which lifted Title 42. And second, the states want Title 42 to remain in place while the Supreme Court reviews the lower court's intervention.