And in a development that was in some ways even more alarming, the court upheld a vaccine mandate that applied only to health-care workers in facilities that receive federal funds — but four of the justices voted against it.
Think about that for a moment. Four justices, one vote short of a majority, would have ruled that, in the midst of a brutal pandemic that has killed millions around the world, the government can’t even require health-care workers to be vaccinated.
Let’s begin with the rule the court struck down. The background here is that federal law gives the Occupational Safety and Health Administration (OSHA) the power to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”
This seems like it would clearly apply to an airborne pathogen that has produced so much disease and death. Yet the conservative majority said that because you can catch covid-19 not only in your workplace but other locations, too, that means OSHA is powerless to protect workers from it.
Writing in dissent, the three liberal justices were incredulous at this line of argument:
Contra the majority, [the law] is indifferent to whether a hazard in the workplace is also found elsewhere. The statute generally charges OSHA with “assur[ing] so far as possible … safe and healthful working conditions.” … The statute does not require that employees are exposed to those dangers only while on the workplace clock. And that should settle the matter.
Would the conservatives have voted the same way if a Republican administration had issued these mandates? Might they have said that this is a temporary measure, and well within the scope of the law as written and the long-standing authority of government to protect people during health emergencies? There’s no way to know for sure, but I have my suspicions.
But this may not be about the kind of partisan bias that would validate an action by a Republican administration and strike it down when a Democratic administration does it. The truth is that the conservatives on the court have a broad animus toward the government’s power to regulate at all, which is playing out in multiple cases.
Some observers have warned that we’re headed for a new Lochner era, referring to the period in the early 20th century when the court struck down laws concerning everything from child labor to minimum wages to monopolistic business practices, on the grounds that government had no right to interfere in the smooth operation of commerce and private contracts, even if it meant children toiling in dangerous factories.
To most sane people, it was a dark time in U.S. history, characterized by brutal exploitation that the Supreme Court rendered the government powerless to stop. But to some, it was the good old days.
As to the health-care-worker mandate the court upheld, even there it’s hard to celebrate. The idea that anyone could oppose mandates on health-care workers being vaccinated in the middle of a pandemic seems almost mind-boggling, like opposing a regulation saying that pilots shouldn’t fly within eight hours of drinking alcohol.
But four justices — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett — said just that. Legislative language that authorizes the Department of Health and Human Services to regulate the “health and safety” of medical facilities, they said, isn’t enough, since there is no specific language authorizing precisely this kind of mandate.
“If Congress had wanted to grant [the government] authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly,” Thomas wrote for the others. “It did not.”
So in one case, these four justices chose to create a limitation on OSHA’s power found nowhere in the words of the law, then use that phantom limitation to say the government has no right to protect people. Then in the other case, they said that because the law didn’t predict the current pandemic with precise specificity, the government has no right to protect people there either.
With that expansive set of logical tools at their disposal, they can clearly do whatever they want in future cases, striking down any regulation they don’t like and upholding whatever they do. The fact that they prevailed in only one of these two cases should give us little reassurance. They’re on a crusade. And just imagine what they could do with another justice or two.