All the Supreme Court justices are vaccinated. The court, moreover, was an early adopter of remote working to keep the justices safe, and even as they’ve gone back to the court in person, they still require Covid testing of those who will argue in front of them. It would seem the nine people who can be removed from power only by death are taking the best available precautions to stay alive.
While the conservative justices are willing to protect themselves from getting sick at work, however, they’re unwilling to extend those protections to the American worker. The Supreme Court heard two cases involving some of the Biden administration’s chief Covid-19 workplace safety requirements last week. In at least one of them, the conservatives who enjoy the privilege of working in a vaccinated and safe environment seemed poised to deny that privilege to others.
Their hypocrisy would be more shocking if they weren’t Republicans.
The most important case is called National Federation of Independent Business v. Department of Labor. It dealt with Biden’s rule for businesses with more than 100 employees, a rule issued through the Occupational Health and Safety Administration (OSHA). It’s a little inaccurate to call the OSHA requirement a “vaccine mandate.” In fact, the OSHA rules say that employees have to be vaccinated or if unvaccinated they have to be tested and masked or they have to be sent home.
I’ve said many times that it would be flatly unconstitutional for the government to force people to put something into their bodies against their will. That would be a violation of their Fourth Amendment rights. Nobody is talking about forced vaccinations by a government agency, and anybody who says that’s what Biden is doing is either uninformed or (more likely) purposely spewing misinformation.
Instead, the OSHA rule says “vax, or get tested and masked, or work from home, or find a new job.” It is squarely within the government’s authority to set workplace safety regulations. OSHA can, and does, regulate the air quality in workplaces; it can certainly regulate how much coronavirus a person can spew on their coworkers.
But the argument that the government has the authority and responsibility to keep workers safe was not good enough for the conservatives on the court. That’s not necessarily because the conservative justices have been infected by the anti-vax strain of stupidity that has taken root in corners of the country. Again, all the justices are vaccinated.
No, the problem for conservatives is the theory that the government can protect the rights of workers. All of the court’s conservative justices come from the long Republican tradition of being anti-labor. They do not believe in raising the costs to business owners for such pedestrian reasons as workplace safety. These conservatives have always been against agencies like OSHA and currently believe they have the votes to effectively neuter the executive branch. As Dahlia Lithwick and Mark Joseph Stern wrote in Slate, “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.”
If a few hundred thousand people have to die from a communicable disease for conservatives to hobble an agency they’ve long hated, like OSHA, that’s a price the conservatives seem willing to pay. All six of the justices appointed by Republican presidents seemed to take a dim view of OSHA regulations regarding the vaccine.
It’s worth noting that two of the lawyers arguing the anti-vax case had to do so remotely, because they failed the Covid test they were mandated to take before appearing at the court in-person. The hypocrisy of these six conservatives’ enjoying all kinds of Covid safety measures while prohibiting the government from mandating basic protections for American workers would have been comical if it weren’t so outrageous and gross.
The second vaccine-based case went a little bit better for workers, if only because the conservative justices kept their mouths shut for most of it. The case is called Biden v. Missouri. At issue is a Biden administration rule that says health care workers at facilities that receive Medicare or Medicaid funding must be vaccinated, unless they have a religious exemption.
This case isn’t just about keeping other health care workers safe; it’s about keeping patients safe (consider the particularly high-risk demographic that is patients who receive Medicare). The government regulates all types of safety requirements for health care facilities and the people who work in them. It is truly unconscionable to think that the health care worker who works in a nursing home could somehow not be required to get vaccinated or get to updating their résumé.
I’d be remiss if I didn’t note that the same logic should apply to people who cite a so-called “religious” exemption. If you think you can pray the ’rona away, you shouldn’t be allowed to provide federally sponsored health services, much less do so while unvaccinated. But the Biden administration knows that without a religious exemption, the theocrats on the court would act like the Biden regulation was demonically possessed by Pazuzu, so I suppose the religious exemption was the better part of valor.
Even with that concession to conservative ideology, it’s not clear that the conservatives on the court will go for it. They were less hostile toward the Medicare and Medicaid requirement than they were toward the OSHA requirement. But, honestly, the Republican-aligned lawyers arguing the anti-vax case put on one of the worst Supreme Court oral arguments I’ve heard. They were easily flustered and not really able to follow the justices’ questions, much less answer them. It was hard to tell if the conservative justices were silent because they disagreed or because the whole thing was just embarrassing for their side of the argument.
As Covid cases soar because of the Omicron variant, it’s always possible that a couple of the conservative justices will blink. Consigning the country to even more sickness and death to score an ideological goal against the administrative state might be heralded in Federalist Society cigar bars but will be condemned by history.
Still, I do not think the conservatives will back off. I think the conservatives will do what Republicans placed them on the Supreme Court to do. This is not about medicine versus religion or science versus YouTube research. This is about American business owners versus American workers, and conservatives always treat businesses as people and people as profit centers. The conservatives don’t have to be anti-vax when they’re already anti-labor.