The Supreme Court is acting as a legislature – again.

Two justices on the Court, a conservative and a liberal, just made that charge in a major case.

Here’s the story of how two presidents set policy and the Supreme Court overruled them.

When he was president, Donald Trump sought to protect the American public from excessive exposure to the Covid-19 pandemic that was sweeping the world. His administration adopted a policy under Title 42 of the federal laws that would ban almost all immigration into the U.S., keeping out people carrying the virus.

This policy, based on the obvious need to protect public health from contagious disease, aligned with his well-known desire to prevent unauthorized immigrants from entering the country. It had the desired effect and was favored by the governors of states supporting Trump’s effort to bar the illegal immigrants.

When he took office, President Joe Biden retained Trump’s policy because of continuing concern about Covid-19. Ultimately, he concluded that, while the virus still existed, it was no longer the same threat to public health. He ordered the end of the Title 42 immigration ban.


Governors of states receiving illegal immigrants opposed his administration’s move, fearing a massive immigrant influx. Many refugees and asylum seekers were assembled at the Mexican border awaiting Biden’s action. The states went to federal court to halt his move.

A district court faced the immediate decision about whether the governors of the complaining states had the right, called “standing,” to bring the case. The Supreme Court has determined parties to a case must be directly affected. Would the states be harmed by an action under a law dealing with public health rather than immigration?

Before the case could proceed further, the Supreme Court was asked to decide if the states could raise the issue. The ban was due to be lifted on Dec. 21, 2022, but just two days before, the Court halted it while it decided that question alone, though not the full case.

The Court ruled it would hear testimony in February but could make its decision as late as June. If it rules in favor of the states, a lower court would then decide on the merits of the case itself. If it decides against the states, Biden can proceed. All that could take months. Meanwhile, the ban, probably no longer needed for health reasons, would remain in place.

In short, the Court overruled the president’s legal determination of the health situation. And the effect of its decision could set national immigration policy for many months, if not years.

Justice Neil Gorsuch, a Trump appointee to the Court, objected, believing the matter was a policy dispute. Joined by Justice Katanji Brown Jackson, Biden’s only appointee, he acknowledged concerns about immigration.


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

The Court had other options. It could have quickly decided on standing. Or it could have allowed the president’s decision to be applied, while moving to a prompt ruling.

Gorsuch and Brown believed the majority was influenced by immigration policy concerns. But they could not know why the majority had made such an important decision, because five justices had said nothing. Instead, they simply ordered that Biden could not end the ban.

Two other justices – Elena Kagan and Sonya Sotomayor – also opposed the majority. They gave no reasons, possibly because they had already expressed themselves strongly about the kind of ruling used by the majority. It’s called the “shadow docket” – rulings made to look simply procedural, but which really decide major cases.

In an earlier case, Justice Kagan had written that the Court “barely bothers to explain its conclusion.” She continued, “The majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making – which every day becomes more unreasoned, inconsistent, and impossible to defend.”

In that case, Justice Sotomayor simply said, “The Court’s order is stunning.” The Court did not suspend a state law, while it considered whether the law was constitutional, but allowed it to go into effect. The immigration case used the reverse approach, though neither time did the Court provide legal justification.

Chief Justice John Roberts speaks of preserving respect for the Supreme Court and asserts that it does not play politics. Yet he was in the majority in both cases, going along with “shadow” opinions in pending cases that allowed an anti-abortion law passed in a Republican state, but blocked the decision of a Democratic president.

“Equal Justice Under Law” is carved on the Supreme Court building. How is justice “equal?” Where’s the “law?”

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.

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