Featured Image
Supreme Court justice Sonia Sotomayor.Leigh Vogel / Getty Images

CORRECTION, Jan. 10, 2022: While the Biden administration began enforcing most of the OSHA rule on January 10, testing unvaccinated workers is not required to begin until February 9.

WASHINGTON (LifeSiteNews) — The U.S. Supreme Court heard oral arguments Friday about the Biden administration’s COVID-19 vaccine mandates for employers and federally-funded health providers, but whether it will strike them down remains a very open question.

In September, President Joe Biden directed the U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) to draft a rule to “require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work,” as well as a mandate for around 17 million healthcare workers at medical facilities that receive Medicare and Medicaid funding and one for federal contractors which accounts for roughly a fifth of the U.S. labor market. The health worker and contractor mandates contain no testing option.

On December 21, Justice Brett Kavanaugh asked the administration to submit responses to challenges of the employer and health worker mandates, then scheduled oral arguments for January 7. The employer mandate was scheduled to take effect January 4, but the administration says enforcement will not begin until January 10, with a February 9 deadline for testing unvaccinated workers, and will not enforce the health mandate until the legal dispute is resolved.

Oral arguments did not clearly forecast how the Court will rule, but questioning fell largely along the justices’ expected leanings. Left-wing Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor accepted the premises that the vaccines are effective and that the omicron variant is just as dangerous as previous forms of COVID, if not more so (evidence so far indicates it is not).

In one particularly odd moment, Sotomayor asked, ​​”what’s the difference between this and telling employers where sparks are flying in the workplace, workers have to wear a mask?” National Federation of Independent Business attorney Scott Keller replied that sparks are “presumably because there’s a machine that’s unique to that workplace,” to which Sotomayor made a potentially-telling comparison.

“Why is the human being like a machine if it’s spewing a virus, bloodborne viruses,” asked Sotomayor. “Are you questioning Congress’ power or desire that OSHA do this if already in 1991 it told OSHA to issue regulations with respect to Hep C and B?”

Conservative Justices Clarence Thomas and Samuel Alito were most skeptical of the mandates, with Thomas casting doubt on whether OSHA had met the legal burden required to impose the workplace mandate as an emergency standard, and Alito noting that all medications and vaccines, even generally beneficial ones, come with a degree of risk. 

He asked U.S. Solicitor General Elizabeth Prelogar if OSHA has ever imposed a requirement on individuals that forces them to assume such a risk. Prelogar could not give an example, but Kagan stepped in to claim that government regulators routinely weigh such tradeoffs. “They want to balance the risks presented to their health in a different way. And OSHA says ‘no, you can’t do that,’” Alito said.

Early in the proceedings, conservative onlookers expressed alarm that advocates for the anti-mandate position did not dispute the vaccines’ effectiveness at limiting the spread of COVID generally or omicron specifically, which would have undercut the core rationale for the mandate, as well as questioning from Chief Justice John Roberts, a notorious moderate vote, which appeared to signal sympathy with the government’s case, though later he also acknowledged that the federal mandates were entering a sphere of authority historically reserved for the states.

Much of the cross-examination hinged on technical aspects of statutory authority and judicial precedent, and it is often unclear whether justices’ questions reflect their actual positions, or represent devil’s-advocate exercises to untangle a case’s various aspects. 

Trump-appointed Justice Neil Gorsuch asked why mandatory vaccination was not a question reserved to the elected bodies of government, rather than unelected agencies such as OSHA; Prelogar claimed that Congress did answer the question when it created OSHA in the first place, thereby delegating such authority. Gorsuch also asked why the government did not federally mandate previous vaccines; Prelogar claimed that COVID represented an unprecedented public health crisis. Gorsuch was skeptical, citing polio.

Some observers, including George Washington University law professor Jonathan Turley, suggest that the justices sounded more sympathetic to the health worker mandate than the employer one.

Justice Brett Kavanaugh, another appointee of former President Donald Trump, suggested the health worker mandate was an “unusual” case with a “missing element,” in that hospitals and other health facilities supposedly are not objecting, despite being the targets of the regulation. In fact, those most directly impacted by the regulation are not the facilities but their employees; this week, Mayo Clinic fired 700 employees for refusing to take the COVID shots.

One of the most significant moments of oral arguments came not from the justices, but from Prelogar. In arguing that not everyone is able to be vaccinated, which she claimed justifies mandating it for those who can, the Biden attorney said OSHA is obligated to honor religious exemptions for COVID vaccines. Last month, leaked audio revealed Biden Justice Department attorney Martin Lederman discussing the difficulty of overcoming religious objections, suggesting that the administration did not want to honor such claims.

Ultimately, it remains to be seen how the Court will rule. Despite some narrow victories for pro-life regulations, religious liberty, and other conservative causes, the current Supreme Court (often mischaracterized by both sides as a “conservative majority”) has also made a number of liberal decisions, most notoriously Gorsuch’s 2020 majority opinion redefining “sex discrimination” in Title VII of the 1964 Civil Rights Act to add sexual orientation and gender identity to its meaning (Kavanaugh voted with conservatives in that case, and Barrett was not yet on the court).

While Gorsuch has generally ruled more conservatively since then, Barrett and/or Kavanaugh have previously been the deciding votes against the Supreme Court taking up reviews of transgender restroom “accommodation” in Virginia, Title X funding of the abortion industry, a Catholic hospital’s right to refuse gender “transition” procedures, and Christian business owners’ right to refuse participation in same-sex ceremonies.

This trend has compelled Gorsuch and Alito to take the unusual step of criticizing their colleagues for lacking the “fortitude” to resolve such issues and being “unwilling to … bear” the criticism that taking a stand would elicit. Conservatives were more optimistic, however, about Kavanaugh and Barrett following their questioning of pro-abortion attorneys over Mississippi’s 15-week abortion ban.

The justices have previously denied reviews of state-level vaccine mandates in Indiana, Maine, Massachusetts, New Mexico, and most recently New York. Even if the Court ultimately rules against Biden, the decision may be confined to the federal government’s breach of federal authority, and leave the lower mandates standing.