Justice Gorsuch joins three liberal justices on Supreme Court’s Title 42 decision

Supreme Court Justice Neil Gorsuch formed an unlikely alliance with the high court’s three liberal justices on Tuesday in breaking with the majority’s decision to temporarily keep the Title 42 border policy in place.

“The current border crisis is not a COVID crisis,” Gorsuch said in his dissent, joined by Justice Ketanji Brown Jackson.

“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,” he added. “We are a court of law, not policymakers of last resort.”

While they did not join Gorsuch’s dissenting opinion, Justices Sonia Sotomayor and Elena Kagan noted that they would also deny the application from 19 Republican state attorneys general to keep the controversial, Trump-era immigration policy in place.

In a 5-4 decision on Tuesday, the high court granted the states’ request to temporarily block and expedite its review of a lower court ruling that ordered the Biden administration to end Title 42.

The rule, first put in place at the beginning of the COVID-19 pandemic, has allowed border officials to skip asylum processing and quickly expel migrants. Title 42’s end is largely expected to create a surge of migrants at America’s southern border.

“The States may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view),” Gorsuch said in his dissent. “But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed.”