Much is being made of the Supreme Court’s decision requiring Title 42 restrictions on illegal aliens to remain in effect until the Court hears the underlying case (sometime in February). That underlying case, as put by the Court in granting certiorari, is this:
Applicants suggested this Court treat the application as a petition for a writ of certiorari; doing so, the petition is granted. The parties are directed to brief and argue the following question: Whether the State applicants may intervene to challenge the District Court’s summary judgment order.
That’s an outcome, however temporary, that is very welcome.
There’s an additional aspect to this ruling that’s also interesting to me, though. A dissent to the grant of certiorari was written by Justice Neil Gorsuch, and it was joined by the activist Justice Ketanji Brown Jackson.
The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. … 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.
This is the activist Justice Jackson agreeing that it’s not a role of an American court to make policy, only to apply law. Whether she honors that position in future cases remains to be seen, but it is, perhaps, a start.
The other two activist Justices, Sonia Sotomayor and Elena Kagan, ducked the question altogether, choosing only to vote without comment against certiorari.