The live audio of Supreme Court oral argument has always been an asset to me. I believe that audio of Supreme Court oral arguments has been a great tool for demonstrating how the justices consider all legal points and how they often distinguish between the policy issues involved. Yesterday’s argument over the Biden Administration COVID-19 vaccination requirements was an exception to this rule.
Perhaps because the arguments were so fast or complicated, many of yesterday’s oral arguments seemed sloppy and disorganized. It was sometimes clear that justices were trying to play for the general public. They made policy arguments but did not answer the exact legal argument or expressed undue concern as to how certain questions could be interpreted. Justice Alito, for example, raised concerns about COVID vaccines’ potential danger for some people.
Justices Sotomayor & Gorsuch made a mess of public health statistics. Justice Sotomayor said that there are more than 100,000 children with serious conditions and some on ventilators. This statement is false. Fact checks have shown that The DispatchPolitifact. ReasonThey have been highlighted.
“Flu kills—I believe—hundreds of thousands of people every year,” Justice Gorsuch commented when asking why OSHA has not mandated flu vaccines. The same is false. According to the CDC seasonal flu claimed between 12,000- 52,000 lives per year in 2010 and 2020.
In many cases justices used strong arguments to support their legal case for the policy at issue, but in others they did not. Justice Kagan was an aggressive and forceful questioner during yesterday’s arguments.
Justice Kagan discussed with Ohio Solicitor General Ben Flowers several reasons people could be exposed to COVID-19 at work.
It is the result of many people coming together in one place and dealing with each other for 8 hours or 10 hours per day. The environment as well as the people in it creates a risk. Let me know if this is wrong. Workplace risk would be the largest and most difficult to control in terms of COVID. Everything else is up to the individual. It is up to you to decide whether or not to go to the ballgame. The decision is yours to decide with whom you will go to the ballgame. You can’t do that at work. The job requires you to be present. It is necessary to stay there at least eight hours per day. The workplace environment must be the same as it is. And, you need to attend with other people that aren’t your friends and might not be responsible. . . .
Kagan recognized many reasons that workplace COVID-19 exposures might be very serious, which Kagan also highlighted elsewhere in her argument. SG Flowers observed that OSHA failed to define COVID-19’s “grave risk” for workplaces or justify its vaccinate/test requirements. OSHA emphasized the company’s number of employees. OSHA considers the number of employees in a company’s payroll to determine whether it is included in its OSHA ETS coverage.
[Note: Many have argued that the OSHA ETS exempts workplaces where the risk of COVID spread may be low, such as those outdoors. This is false, as I noted here. The OSHA ETS does exempt individual employees who work exclusively outdoors, at home, or on their own, but (as OSHA has made very clear) this exemption “depends on the working conditions of individual employee,” and does not exempt low-risk workplaces.]
Justice Kagan’s query highlighted numerous reasons OSHA standards aimed at controlling workplace COVID-19 spreading might be legal (and would be an excellent idea). However, OSHA has not yet made public the details of the OSHA-adopted standard. In other words, OSHA might not have had the authority to adopt any COVID-19 standard, especially under its emergency temporary standard-setting authority.
Later in the argument, Justice Alito asked the Solicitor General whether she was aware of “any other safety regulation that imposes some extra risk, some different risk, on the employee,” noting that COVID-19 vaccines might pose some risks in some contexts. SG Prelogar was unable to provide any examples. However, many regulations reduce the risk of introducing or increasing smaller risks. There are a lot of academic literature about this topic, including this book. Risk vs. Risk). Justice Kagan said, “There are always situations where there are risk/risk tradingoffs, risks for both sides. But one risk far outweighs the other, and that is what comes up through regulatory space.” One example of a situation that can arise in workplaces is fire retardant materials. Although they may reduce the danger of fire, it could also increase the chance of developing cancer.
Justice Alito appeared to be unduly worried that SG Prelogar or the listeners might misunderstand the question. He once repeated the phrase, “I’m making no such point”, three times. Although it was difficult for me to not hear Justice Alito’s concern about the Court’s perception of the question, I could not help but think that Justice Alito had increased his sensitivity.
What we found at oral argument was that justices were more critical of OSHA’s ETS than they are the requirement to provide vaccines for Medicare or Medicaid providers. This makes sense. While the former rule seems to be too broad and potentially beyond OSHA’s jurisdiction, the latter appears to flow directly from federal government authority to make sure federally-funded health care providers do it in a safe and healthy way. COVID-19 risks are not directly related to how many people work for a company. But, if the federal government invests in health care, it has the ability to take measures to make sure that COVID-19 does not rise.