A majority of the justices on the Supreme Court may not see COVID-19 as an emergency. But they do see it as an opportunity. This unprecedented pandemic, the deadliest in American history, has forced the executive branch to act swiftly and creatively at each stage of the crisis. Facing an often-deadlocked Congress, President Joe Biden has drawn on old statutes to establish new regulations to stop the coronavirus from spreading and killing more people. Yet in so doing, he has given the Supreme Court’s Republican-appointed justices a chance to hobble his whole agenda. And during oral arguments over Biden’s vaccine mandates on Friday, these justices made it painfully clear that they will also seize this moment to grind down the federal government’s ability to perform even its most basic functions as well.
Friday’s arguments revolved around two rules issued by the Biden administration. The first, which we’ll call the employer mandate, was issued by the Occupational Safety and Health Administration. It imposes a requirement on companies with 100 or more employees: Workers must either get vaccinated against COVID-19 or wear a mask at work and undergo weekly testing. The second, which we’ll call the health care mandate, was issued by the Department of Health and Human Services. It obligates hospitals and other care facilities that accept Medicare and Medicaid funds, which is most hospitals, to issue a vaccine mandate for workers. This mandate includes medical and religious exemptions. A coalition of red-state attorneys general challenged both rules, and after the lower courts divided, the Supreme Court scheduled a special Friday session to decide their fate.
And what a session it was. The nihilism, hypocrisy, and armchair epidemiology on display at times bled into rank anti-vax-ism. The conservative supermajority did not bother to conceal its contempt for the Biden administration’s effort to root new policies in old statutes. As the basis for its employer mandate OSHA cited a federal law that permits it to issue an “emergency temporary standard” when it determines that it’s “necessary” to protect employees from a “grave danger” resulting from “physically harmful” “agents” or “new hazards.” The coronavirus is both an infectious “agent” and a “new hazard” that poses a “grave danger.” So OSHA’s vaccinate-or-test regime fits pretty neatly into Congress’ mandate. But the Republican-appointed justices appeared to begin with the premise that existing law could not possibly authorize this rule, then worked backward to justify their skepticism.
That’s because these justices emerged from a conservative legal movement that has grown obsessed with obliterating “the administrative state”—the hundreds of federal agencies that actually implement laws passed by Congress. Because Congress cannot anticipate every future problem, it has long given these agencies broad mandates to accomplish some overarching goal however their experts see fit. For instance, lawmakers charged the public health experts at OSHA with determining how best to protect Americans from dangers in the workplace. They did not try to predict every hazard that might arise; instead, they simply tasked the agency with deciding how best to confront the most catastrophic risks to American workers.
To the conservative justices, this approach to governance is a betrayal of the constitutional order. Citing hazy theories that appear nowhere in the Constitution—the “nondelegation doctrine,” the “major questions” doctrine (and the “it must be illegal if I hate it” doctrine)—they have sought to strike down these delegations as unconstitutional. Or, at a minimum, they have interpreted the delegations so narrowly as to strip agencies of all their power and discretion, ostensibly to avoid “constitutional concerns.” This tactic was on full display throughout Friday’s marathon arguments. Chief Justice John Roberts, initially thought to be a swing vote, led the charge, chastising the Biden administration for seeking a “workaround.” (This quote was an apparent allusion to chief of staff Ron Klain’s retweet of a reporter who described the employer mandate as a “work-around,” which lower courts fixated on as apparent proof of bad faith.) Roberts accused the administration of “trying to work across the waterfront,” searching for laws that might empower agencies to mandate vaccines and then “picking them off one by one.”
The chief justice continued: “It seems to me that the more and more mandates pop up in different agencies, I wonder if it’s not fair for us to look at the court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this?”
To be clear, this approach is not how statutory interpretation works. The Supreme Court is supposed to ask whether a federal law properly authorizes an agency’s action. It is not supposed to ask whether an agency’s action is just one part of a nefarious plot to “work around” congressional inaction. But then again, Roberts’ usual principles were glaringly absent on Friday. Later, he faulted OSHA for relying on a statute passed “50 years ago,” a time “almost closer to the Spanish flu than it is to today’s problem.” Does the chief justice think federal laws have an expiration date? If so, he should reconsider his own forced arbitration jurisprudence, which is rooted in a 1925 law and not remotely intended for use against consumers and workers.
At least the chief—alone among the court’s right flank—appeared to understand that COVID-19 is a legitimate and horrific health crisis. None of his fellow conservatives really acknowledged this reality, though the signs were all around them. Two attorneys attacking the vaccine rules have tested positive for COVID-19 and participated remotely. Justice Sonia Sotomayor, who is at high risk of serious illness should she contract the coronavirus, also participated remotely. All of the justices except Neil Gorsuch opted to wear masks.The Supreme Court has strict protocols in place in its workplace because you can, in fact, catch and transmit COVID-19 in your workplace.
No wonder the general sensibility on the court’s left flank seemed to be astonished disbelief at the conservative line of questioning. Perhaps the best marker of the breadth of the gaslighting on display was the astonishment evidenced by some of the progressive justices that this argument was taking place at all, much less in the midst of a massive surge in coronavirus cases in January. As Justice Stephen Breyer put it during the employer mandate argument: “Are you still asking us to issue a stay and stop this from taking effect? … There were three-quarters of a million new cases yesterday. … That’s 10 times as many as when OSHA put this rule in. The hospitals are today, yesterday, full.” Or in Justice Elena Kagan’s stunned words: “This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here. I’m just sort of stating facts.”
The issue before the court is a stay, or freeze, of Biden’s mandates. This process requires balancing the potential harms to each side. To Justice Sam Alito, the need for a stay is urgent and exigent. Whereas, in the S.B. 8 context, the immediate loss of the right to abortion at six weeks was not an emergency, in the context of the new vaccine rules, the constitutional burden is so acute that it must be stayed. Alito seems to be more interested in managing his public image than in the thousands of people who are sick and dying. If the court needs a few days to decide whether to impose an administrative stay, Alito thundered at Solicitor General Elizabeth Prelogar, “Are you going to say, well, they’re causing people to die every day?” He wanted her assurance that the justices could take “time to digest this case and decide it,” without being accused of needlessly inflicting horrible consequences.
The anti-vax sentiments surfaced in earnest when Alito hounded Prelogar about the risks of vaccines. He insisted that he didn’t want to be misunderstood: “I’m not saying the vaccines are unsafe. The FDA has approved them. It’s found that they’re safe. It says that the benefits greatly outweigh the risks.” However, he then insisted, some people will suffer “adverse consequences,” because “there is some risk.” Prelogar reiterated that the Food and Drug Administration has found vaccines are safe and effective “by orders of magnitude.” Because he now sounded like he was spreading anti-vax madness and the press would report that fact truthfully, Alito scolded Prelogar: “I’m not making that point. I’m not making that point. I’m not making that point. There is a risk.”
“I’m not making that point that I am making” is the way cases are discussed now. Government officials and Supreme Court justices can just insist that vaccines are safe and important and also dangerous and bad. Pick your own facts about the danger of COVID-19 and the efficacy of vaccines. It’s your constitutional right to be for and against public health at the same time.
Arguments over the health care mandate went somewhat better for the government, though they were not a slam dunk. In an encouraging sign, the chief justice asked Louisiana Solicitor General Liz Murrill—arguing remotely, because she evidently has COVID-19—to respond to a district court judge’s claim that the pandemic is essentially over. She declined to do so, stepping back from her own briefs in which she downplayed the threat of the virus. Justices Brett Kavanaugh and Amy Coney Barrett, who scorned the employer mandate in unambiguous terms, also sounded uncertain about the challenge to the health care mandate. There may be a glimmer of hope that these justices will let the federal government instruct hospitals not to “kill your patients” with COVID-19, in Kagan’s memorable words.
During arguments, the liberal justices were forced to address the merits arguments while also tamping down the anti-science hysteria of the opposing side. For instance, Ohio Solicitor General Benjamin Flowers insisted that vaccines probably don’t stop spread or transmission since he himself has COVID-19 despite being vaccinated. Gorsuch repeatedly likened COVID to the flu. And so Kagan had to clarify that if the OSHA mandate goes into effect, people will have to wear masks on Monday. In the health care case, Kagan was again forced to clarify that nobody will be fired tomorrow if the mandate goes into effect. So acute is the contagion of medical misinformation coming from the court itself that the three liberals had to keep clarifying—for themselves as much as the public—that the government is not proposing an Orwellian employment hellscape so much as safe and effective mitigation efforts for a lethal virus that is emptying workplaces, filling hospitals, and debilitating medical professionals.
Government efforts to ameliorate these problems would have been rational two years ago, and have been deemed rational for decades. But today, five or possibly six justices find that entire concept nefarious, science and law notwithstanding.