Lazy Caturday Reads: SCOTUS, Covid, and the Right Wing AgendaPosted: January 8, 2022
There’s not a lot of breaking news today, but there are plenty of articles about the the Supreme Court and the pandemic; at the moment those topics are interrelated because of yesterday’s SCOTUS argument on President Biden’s vaccine mandates. The conservative majority on the Court is apparently working to kill Americans in the service of weakening the Federal government.
Dahlia Lithwick and Mark Joseph Stern at Slate: COVID Is an Emergency. To SCOTUS’s Conservatives, It’s Also an Opportunity.
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.
Please go read the rest at Slate.
Ian Millhiser at Vox: The Supreme Court appears ready to slash Biden’s vaccine mandate for workers.
Benjamin Flowers is Ohio’s solicitor general, and he was supposed to be at the Supreme Court on Friday to ask the justices to nullify a Biden administration rule requiring most workers to either be vaccinated against Covid-19 or to be regularly tested for the disease.
But Flowers had to argue his case over the phone. The reason why? He himself has Covid, and therefore could not enter the justices’ workplace and risk endangering them and their staff.
It’s an elegant metaphor for the kind of see-no-evil approach to Covid-19 that Flowers, and several other lawyers arguing against policies from President Joe Biden’s administration, would impose on the nation. Flowers would have the justices block one of Biden’s most significant efforts to halt a potentially deadly disease that, as Justice Stephen Breyer noted multiple times during Friday’s arguments, is infecting about three-quarters of a million Americans every day this week.
And yet, if Friday’s argument in National Federation of Independent Business v. Department of Labor is any sign, there will almost certainly be at least five votes on the Supreme Court to block the workplace Covid rule, which applies to employers with 100 or more employees.
Meanwhile, in separate case Biden v. Missouri, the Court considered a rule requiring health providers that accept Medicare and Medicaid funds to be vaccinated. This oral argument was less of a bloodbath for the government, and it seems possible that this more limited rule for health providers will be upheld.
But the oral argument in the first case, NFIB, suggests that the Court’s 6-3 conservative majority is inclined to hand down a very broad decision — one that won’t simply hobble many of the Biden administration’s efforts to quell a pandemic that has killed nearly 830,000 Americans, but that could also fundamentally rework the balance of power between elected federal officials and an unelected judiciary….
Multiple justices appeared eager to impose new restrictions on Congress’s ability to delegate authority to federal agencies. Indeed, the Court could easily give itself a sweeping new power to veto agency regulations that a majority of the justices disapprove of.
A majority of the Court, in other words, appeared much more bothered by the implications of letting the Biden administration fight the pandemic than they are bothered by the many deaths caused by the pandemic itself.
Ironically, Covid is killing off right wing Republicans who refuse to get vaccinated and wear masks. Kent Sepkowitz at The Daily Beast on January 3: Omicron Shows the Unvaccinated Will Never Be Safe.
First, the transmissibility of Omicron has shattered all previous records, including those set by the Delta variant, which briefly had been considered just about worst-in-class due its extreme contagiousness. Second, it has shown us that COVID-19 can be a mild disease—if one considers a three- or four-day bout of fatigue, aches, and fever to be mild.
But it is the third revelation that’s the most alarming. Omicron has scrambled a great deal of what we thought we knew about immunity to the infection in the first place. Witness the ease with which it has infected those with one or two—or even three—vaccinations, a phenomenon referred to as vaccine evasion, or VE. Thankfully, the current vaccines still prevent most lethal infections, despite being less effective at preventing infection itself.
However, it is not vaccinated people with breakthrough infections who comprise the most unsettling part of the immunity story, even as that makes headlines and dominates social media. Rather, it is the ease with which Omicron has evaded the immunity provoked by previous infection with the Delta or the Alpha (aka the British or B-117) variants that has ominous implications for what’s ahead—and raises the specter of more mass death.
For those willing to accept vaccines, this type of evasion less than a year after the mRNA products entered widespread use is a serious but surmountable scientific challenge. We have long known we may need to develop just-in-time vaccines for a newly—and suddenly—dominant variant. MRNA technology lends itself to exactly that. The technology is available, and though the product will always lag behind the latest pandemic variants, tricks (like third doses and fourth doses of the old, less-finely tuned vaccine) to buy time or innovative technologic shortcuts surely will be developed.
Vaccinated people will—sooner or later—be able to keep up with the always-changing virus.
But the implacable millions for whom vaccination represents some intolerable intrusion on their personal space—call them the Never Vaxxers—represent a very different problem, one that science, persuasion, or even harsh threats seem unable to resolve. We knew there were anti-vaxxers, and we knew the pandemic would not end easily, but these people will not stop dying any time soon.
One more on yesterday’s SCOTUS session from The Washington Post’s Ruth Marcus: Opinion: Where was Justice Neil Gorsuch’s mask?
Where was Justice Neil M. Gorsuch’s mask? If you think this sounds like a trivial question, I dissent. I believe it goes to the heart of our fraying social fabric.
When the Supreme Court justices took their seats Friday morning to hear oral arguments in two cases challenging the Biden administration’s covid rules, seven of the justices wore masks — a change in their previous behavior prompted, no doubt, by the emergence of an new infectious strain.
One justice, Sonia Sotomayor, who had previously been the only justice to wear a mask on the bench, participated remotely from her chambers. Sotomayor has diabetes, which is a risk factor for more severe illness with covid. She also is, or would have been, Gorsuch’s seat mate for the nearly four-hour-long argument session.
The court, having resumed in-person arguments, retains strict limits on who can attend and strict rules for those allowed inside the chamber. Reporters and lawyers must wear masks — N95 masks, not the less-effective cloth variety — and test negative for covid. In fact, two of the lawyers who argued against the Biden administration’s vaccine mandates had to do so remotely after testing positive. And instead of being crammed cheek by jowl in the press section, reporters, along with the justices’ law clerks, are spaced throughout the otherwise-empty chamber.
These rules and practices all make sense for the court (where five justices, including Sotomayor, are over 65) and for the public. Indeed, they offer a model for responsible workplace behavior in an age of omicron.
Which brings me to the question: Where was Gorsuch’s mask?
I put that question to the court’s public information office. No response to that, or to a question about whether Gorsuch’s masklessness had something to do with Sotomayor’s decision to absent herself.
There’s more at the WaPo link.
While we’re discussing the Supreme Court, I want to highlight another article at Slate by Mark Joseph Stern from one year ago: Ginni Thomas, Wife of Clarence, Cheered On the Rally That Turned Into the Capitol Riot.
On Wednesday morning, Ginni Thomas—wife of Supreme Court Justice Clarence Thomas—endorsed the rally in Washington demanding that Congress overturn the election. She then sent her “LOVE” to the demonstrators, who violently overtook the Capitol several hours later. Two days later, Thomas amended her post with the addendum: “[Note: written before violence in US Capitol].” By that point, five people involved in the insurrection, including a Capitol Police officer, had died.
Thomas, a conservative lobbyist and zealous supporter of Donald Trump, has fervently defended the president over the last four years. On her Facebook page, she frequently promotes baseless conspiracy theories about a “coup” against Trump led by Jewish philanthropist George Soros, a frequent target of anti-Semitic hate. Thomas draws many of these theories from fringe corners of the internet, including an anti-vax Facebook group that claimed Bill Gates would use the COVID vaccine to kill people. In recent months, she also amplified unsubstantiated corruption claims against Joe Biden while insisting, falsely, that the Obama administration illegally spied on Trump’s 2016 campaign, then tried to rig the election against him.
In turn, Trump has rewarded Thomas with an extraordinary amount of access to the Oval Office. Her advocacy group Groundswell got an audience with the president in early 2019. According to the New York Times, the meeting was arranged after Clarence and Ginni Thomas had dinner with the Trumps. (Clarence Thomas and Trump appear to be quite friendly: The justice took his clerks to meet with the president in the Oval Office at least once; Ginni attended as well.) At the White House, Groundswell’s members lobbied Trump against transgender service in the military, which he already prohibited in 2017. The ban took effect in 2019, around the time of Groundswell’s meeting, after the Supreme Court lifted lower court orders blocking it by a 5–4 vote. (Clarence Thomas did not recuse himself from the case; he has never recused from any case because of his wife’s lobbying activities.) The New York Times also reported that Ginni Thomas compiled lists of federal employees whom she deemed insufficiently loyal to the president. She sent her lists to Trump, urging him to fire the disloyal employees, though he seems to have largely ignored her. He has, however, stacked his administration with former Thomas clerks.
Throughout the 2020 campaign, Thomas remained active on Facebook, condemning Black Lives Matter, opposing COVID-19 shutdowns, and touting the “Walk Away” movement, which purports to spotlight Democrats who became Republicans under Trump. (At least two individuals featured in the “Walk Away” series, both Black, were actually models from royalty-free stock photos.) She also campaigned for Trump in person—and, according to the Intercept, spearheaded a dark-money operation to support the president. Cleta Mitchell, the Republican lawyer who participated in Trump’s shakedown of the Georgia secretary of state, led the project.
Chief Justice Roberts claims to be concerned about conflicts of interest in the judiciary. Why isn’t he doing anything about this obvious conflict for Clarence Thomas?
I’ll add more links in the comment thread. What stories are you following today?