Washington Whispers: This is No Decision–It’s a Superspreader
By Jessie Seigel / Washington, D.C.
The Supreme Court protects itself well from Covid-19. Since the pandemic began, the Court has been closed to outside visitors. For much of the time, the justices worked by teleconference. But since October, when they began hearing oral arguments in person again, all attorneys, whether or not they are vaccinated, have been required to take a PCR test at a Court-designated facility. They must test negative to enter the building and are required to wear an N95 or KN95 respirator while there except while presenting their arguments, eating or drinking. Even given these protections, the nine justices also have the option to work remotely.
Yet, last week, in a 6-3 vote, with the liberals dissenting, the Court blocked the Biden Administration from enforcing a temporary emergency workplace standard adopted by OSHA (the Occupational Safety and Health Agency) that would provide a modicum of workplace safety for the rest of us.
The OSHA temporary workplace standard—which by statute would only last six months—is far less strict than that the Court has set up for its own workplace. It provides simply for employers with at least 100 employees to require that a worker either be vaccinated against Covid or take a weekly Covid test and wear a mask at work.
As the Washington Post noted: “The OSHA case is fundamentally about the power of the government to protect workers — who, unlike the justices, have no power to create safe working conditions for themselves.”
The reasoning of the unsigned majority opinion is so transparently untenable as not to warrant even the dignity of calling it an exercise in sophistry. Justice Neil Gorsuch wrote a concurring opinion, relying on very similar arguments, in which fellow conservative Justices Clarence Thomas and Samuel Alito joined. That no one put his or her name as author to the majority opinion (by process of elimination, it must have been Justice John Roberts, Brett Kavanaugh, or Amy Coney Barrett) suggests that the author doesn’t dare take credit for writing it lest doing so tarnish his or her individual reputation.
Even before writing his concurring opinion, Gorsuch showed his disdain for Covid protections by sitting on the bench maskless while hearing the arguments concerning the OSHA vaccine standard. The 83-year-old Justice Stephen Breyer, and Justice Sonia Sotomayor, who suffers from diabetes, were thus faced with the choice of chancing viral exposure or attending remotely. They attended remotely. Though they have not stated that the maskless Gorsuch was their reason, his callous behavior put them in that position.
Gorsuch’s cavalier refusal to wear a mask not only exposed his fellow jurists to insult and potential injury but constituted a public demonstration of his flagrantly biased prejudgment against the need for a workplace rule even before he had heard arguments.
The Flaws in the Court’s So-Called Reasoning
The Appellate Court for the Fifth Circuit initially stayed OSHA’s emergency temporary standard while its legality was being challenged in a number of courts across the country. But the Sixth Circuit subsequently lifted the stay, allowing the requirement to take effect. The challengers appealed that decision to the Supreme Court, arguing that OSHA’s requirement exceeded OSHA’s statutory authority.
In reinstituting the stay, the Court majority’s main argument is that the risk of contracting Covid-19 does not qualify as a work-related occupational hazard because, in addition to the workplace, it spreads wherever people gather, and therefore is a universal risk “no different from other day-to-day hazards of daily life.”
The Atlantic rightly called this “laughable logic,” pointing out that
“The fact that you can die in a fire in your apartment is not an argument against regulating fire hazards in factories or offices.”
Though eschewing The Atlantic’s sarcasm, the Court’s dissenting opinion, authored by Justice Breyer, in which Justices Sotomayor and Kagan joined, thoroughly demolishes the majority’s argument.
Breyer stated that the virus “perfectly fits” the language within the statutory requirements for an emergency temporary standard since the Covid virus is a “new hazard” as well as a “physically harmful” “agent. It also poses a “grave danger” to millions of employees. Breyer wrote: “As of the time OSHA promulgated its rule, more than 725,000 Americans had died of Covid-19 and millions more had been hospitalized…In the last week alone, it has caused, or helped to cause, more than 11,000 new deaths…And because the disease spreads in shared indoor spaces, it presents heightened dangers in most workplaces.”
Breyer pointed out that the majority does not contest this assessment of the virus’s workplace danger, and that it does not matter whether those hazards also exist beyond the workplace—so long as they exist in the workplace. And, clearly, they do.
Furthermore, quoting OSHA’s argument, the dissent stated: “‘[D]uring the workday, workers may have little ability to limit contact with co-workers, clients, members of the public, patients, and others, any one of whom could represent a source of exposure to’ the virus.”
Purporting to defend individual freedoms, the majority has claimed the requirement to be vaccinated or tested and wear a mask is “a significant encroachment into the lives—and health—of a vast number of employees.”
However, the majority makes no mention of the viral threat’s encroachment on the lives, health and possible deaths of employees who must work despite exposure to those who do not get vaccinated, tested, or wear masks. As Ruth Marcus wrote in the Washington Post, “In the majority’s worldview, the interests of those workers are nowhere to be found.”
The majority cites, on one hand, the challengers’ claim of the billions of dollars in “unrecoverable compliance costs” and “hundreds of thousands of employees forced to leave their jobs” if the OSHA requirement is not stayed. It also cites, on the other hand, the Federal government’s claim that the temporary requirement will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. The majority then sententiously states: “It is not our role to weigh such trade-offs.”
But in staying the OSHA requirement, that is exactly what this ultra-conservative Court has done. And it has weighed in favor of moneyed business interests. What a surprise!
The dissent, for its part, gives life the greater weight, stating: “The public interest here—the interest in protecting workers from disease and death—overwhelms the employers’ alleged costs… OSHA estimated that in six months the emergency standard would save over 6500 lives and prevent over 250,000 hospitalizations. Tragically those estimates may prove too conservative.”
The Legal Standard Betrayed
As the agency with expertise in workplace health and safety, OSHA’s determinations are supposed to be “conclusive if supported by substantial evidence.” Where OSHA meets that test, as it did here, judicial review is supposed to defer to OSHA’s judgment.
Furthermore, to obtain a stay pending appellate review, applicants must show that: (1) their claims are likely to prevail, (2) denying them relief would lead to irreparable injury, and (3) granting relief would not harm the public interest.
Though the majority opined that the challengers were likely to prevail, it never even addressed whether denying the stay would lead to irreparable harm or whether granting it would harm the public interest. The dissent addressed all of these questions, and well supported its view that none of these requirements were met.
The Atlantic suggested that the right-wing justices’ reasoning followed the views and interests of their political coalition, saying: “Their academic pedigrees and social status do not insulate them from adjusting their views to fit those of the community they have chosen.” The publication added: “The Court is a site of political combat, and its composition and rulings reflect that reality, not the illusion of impartiality that the justices and their advocates insist on putting forth as a way to defend the legitimacy of the Court’s right-wing majority.”
In an MSNBC interview, Howard Dean recently said of this decision: “This is just right-wing zealotry. Three justices—Alito, Thomas and Coney Barrett—have complained that people think the Court is made of partisan hacks. Well, it is.”
I couldn’t agree more.
To some degree the Supreme Court as an institution has never been utterly impartial. The notion that a judge can entirely put aside his or her biases is a fiction. The biases just present themselves as so-called judicial philosophy. That said, the right-wing justices on the current court are not even making a pretense of judicial independence. They are acting as a legal adjunct to the right-wing putsch, of which anti-vaccination and anti-federal regulation are a part. Something must be done to reestablish the court’s dedication to the Rule of Law. It is time to seriously consider adding justices—ones who are not hacks--to the Court.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.