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Neil Gorsuch sided with liberal justices in Title 42 case. Constitutional scholar explains why that's a good thing.

Erin Schaff-Pool/Getty Images

George Washington University Law School professor Jonathan Turley explained on Tuesday why Supreme Court Neil Gorsuch sided with his left-leaning colleagues and opposed keeping Title 42 in place at the border.

What did Gorsuch do?

In a 5-4 decision, the Supreme Court granted a stay against a lower court decision ordering that Title 42 be overturned. The court, however, did not rule on the merits of the case, Arizona v. Mayorkas. The court will hear oral arguments in February.

To the surprise of many, Gorsuch sided with his liberal colleagues and explained why he would not have granted the stay.

In his dissent, which Justice Ketanji Brown Jackson joined, Gorsuch said the court should not intervene in what is otherwise an issue for policymakers, i.e., Congress.

Gorsuch wrote:

The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. 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. Today, the Court supplies just such an order. For my part, I do not discount the States’ concerns. Even the federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.”

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.

What did Turley say?

The significance of Gorsuch's position cannot be understated.

Whereas it may have been assumed that Gorsuch would join his conservative colleagues, Gorsuch demonstrated his "independence" from ideological tribalism, Turley explained, and his commitment "to principle over convenience or compromise."

"Gorsuch recognizes that the Biden Administration's opposition to Title 42 may fuel the flood of illegal immigration across the Southern border," Turley wrote on his website.

"However, he is bound by oath to apply the law, not tailor the law to fit political or policy demands," he added.

On the other hand, Turley explained the court's decision on Tuesday further exposed Chief Justice John Roberts as an "institutionalist."

"The two positions between Roberts and Gorsuch captures a more fundamental difference than any disagreement over Title 42," Turley said. "Roberts is the ultimate incrementalist and institutionalist. He tends to resist the Court ordering radical changes as evident in his sole concurrence in Dobbs where he wanted to preserve Roe but uphold the Mississippi law."

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