The Supreme Court had an especially active exchange at oral argument on Jan. 7 as they grappled with a challenge to Joe Biden’s vaccine mandate for private businesses. National Federation of Independent Business vs Department of Labor could perhaps see a ruling in a matter of days. While predicting an outcome based on questions asked at oral arguments is ultimately unreliable, it is hard to ignore the tenor and tone from the Court’s majority, which seemed quite skeptical of the Biden administration’s workplace vaccine and testing rule for all companies with 100 or more employees.
Supreme Court Justices have adapted their workplace to balance COVID-19 risks. All members of the Court are vaccinated, and Justice Sotomayor, a diabetic, participated in oral arguments from her chambers. Of the remaining eight jurists, only Justice Gorsuch went without a mask in the courtroom, which is closed to the public due to the pandemic. That, however, does not mean Justices are ready to allow the Biden administration to impose a vaccine mandate and testing requirements on the rest of the country.
When the “facts” don’t add up…
Scott Keller argued for the coalition of business groups opposed to the mandates, and his key argument was that “a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies.” Justice Kagan was first to challenge Keller but appeared to lack a grasp of the facts as she claimed, “More and more people are dying every day.” This is a false reading of the numbers because it doesn’t take the number of cases into account. Cases of infection in January 2022 are well over triple the number from the same time last year, yet deaths are well below half the rate from Jan 2021.
Justice Kagan wasn’t the only one whose facts were purely her own. Later in the arguments, Justice Sotomayor doubled down on false statements from the liberal bloc. She said, “Omicron is as deadly as delta and causes as much serious disease in the unvaccinated as delta did.” If that wasn’t bad enough, she added some invented numbers about juvenile infections, saying, “We have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.” Fortunately, children aren’t in the workplace, which is what these regulations cover, so perhaps we won’t see them in any opinions in the case.
First the Verdict, then the Trial…
Of all the Justices, Sotomayor and Breyer seemed to have started the hearing with a decision already in mind. Justice Breyer said he thought it was “unbelievable” that lawyers would consider it in the public interest to issue a stay preventing Biden from implementing the OSHA mandate. While Breyer may not keep an open mind, Mr. Keller and his clients might not need his vote to win. They seemed to enjoy a fair bit of skepticism towards the government case from other Justices.
Solicitor general Elizabeth Prelogar handled the case for the government. A former beauty queen and Rhodes scholar, Ms. Prelogar clerked for Judge Merrick Garland on the DC Circuit and then had back-to-back Supreme Court clerkships for Justices Ruth Bader Ginsburg and Elena Kagan. Her familiarity with the court did her no favors at oral arguments in this case, however, as she failed to exhibit a demeanor befitting the solicitor general. She spoke over multiple justices in her attempts to make the government’s case and failed to yield the floor as she should have.
Justice Roberts mentioned that the regulations in question seem less like a specific attempt at regulating a workplace safety issue rather than implementing a mandate wherever possible. He said, “This approach has been referred to as a workaround. What I’m wondering is what you’re trying to work around?” He suggested that perhaps the court should look not at the various mandates from the administration individually but collectively. The Chief Justice then made a point of mentioning multiple times that the administration was relying on a 40-year-old piece of legislation that has never been used to justify this kind of regulation.
Please don’t let me be misunderstood
Justice Alito was the largest stumbling block for General Prelogar’s arguments and put on what could be described as a command performance in pointing out flaws in the government’s case. First, he extracted the point that vaccines have risks associated with them. He did so like a dentist, and Prelogar fought the admission as if her case depended on it – and maybe it does. Alito built up his question with a long preamble:
“I don’t want to be misunderstood in making this point because I’m not saying the vaccines are unsafe. The FDA has approved them; it’s found that they’re safe, it said that the benefits greatly outweigh the risks. I’m not contesting that in any way. I don’t want to be misunderstood. I’m sure I will be misunderstood. I just want to emphasize I’m not making that point.”
All that led up just to him asking if the government admitted to the plain facts that there was a greater than zero risk of adverse effects from taking the vaccine. Even still, General Prelogar couldn’t give a simple and truthful “yes” to the question. Justice Alito discussed how this was different from OSHA safety requirements which do not impose additional risks. It’s not like hard hats cause migraines, or safety glasses usage could lead to myopia. This risk imposed by the mandates may be enough to lead to their downfall before the Court.
Justice Alito went into another point not otherwise addressed by the panel; The workers may implement this safety measure without cost, interference, permission, or knowledge of and by the employer. It’s not like a worker in a chemical factory can install her own eyewash and decontamination facility. That must be done by management. Here, the vaccine is offered throughout the country free of charge to any adult who asks. Since the Labor Department implemented the rule solely to protect unvaccinated workers, and they may vaccinate themselves at any time for free, why is OSHA involved?
Mr. Keller and the coalition opposed to the mandate asked the Court to issue a ruling before Monday, Jan. 10, when OSHA said it would begin implementing it. He told the Chief Justice, “we need to stay now before enforcement starts.”
~ Read more from Scott D. Cosenza.