Justice Gorsuch’s Error in NFIB v. OSHA

Patterico identified an error in Justice Gorsuch’s dissent. NFIB v. OSHA. The passage is from the dissent.

The agency explained that the statute “does not authorize OSHA” to issue broad health standards, as it did to the federal court two years ago. These affect the lives of workers outside work. Brief for Department of Labor, In re: AFL–CIO, No. 20–1158, pp. 3, 33 (CADC 2020). Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.

Here is the pertinent passage:

 The OSH Act does not authorize OSHA to issue sweeping health standards To treat entire categories of infectious diseases, both known and not. on an emergency basis without notice and comment. Cf. AFL-CIO v. OSHA, 965 F.2d 962, 972 (11th Cir. 1992). (Vacating standard that regulates hundreds of airborne “diverse substances” without presenting “substantial proof in the record” supporting each.

In 2020, the brief discussed an ETS that could be used to treat infectious diseases both known and unknown. The brief did not address OSHA’s wider authority to “issue sweeping health regulations” that could have an impact on workers lives beyond the office.

My first thought when I noticed this error was “Where did Gorsuch get it?” My research revealed that I couldn’t find any citations to the 2020 brief in any Supreme Court filings. However, this citation appears in the Sixth Circuit amicus brief by the Michigan House of Representatives & Michigan Senate. This brief is based on Labor Department filings, which I believe it accurately quotes:

The public-health goals might be noble, however, Congress never authorized OSHA to issue occupational standard, particularly temporary, to prevent harms from outside of the workplace. The Labor Department rescinded this authority in the face of a labor union trying to force it to act on this issue last year.[t]The OSH Act doesn’t give OSHA the authority to create broad health standards. To address whole classes of infectious diseases, known or unknown, on an urgent basis and without any notice or comment.” The Response of the Department of Labor to an Emergency Pet. For a Writ Mandamus, In Re Am. Fed’n of Labor & Cong. Indus. Orgs., No. 20-1158, 33-34 (D.C. Cir. May 29, 2020

Gorsuch didn’t include the caveat “known and unknown” in Michigan’s brief.

In the end, however, this error was unintentional. The dissent is valid regardless of the citation. The downside to the rocket docket’s speed is the fact that it is not possible to review all sources in the same time.

Justice Scalia used a method called “booking.” Willie Jay described the process as “booking”: “Rereading every original source before he would cit it in his opinion.” This is Judge Joan Larsen’s recollection.

Once the justice has finished drafting the drafts that we clerks had submitted, “booking” is the last step to producing an opinion. As he read every case, statute and article in support of our opinion, we would pull a cart from the library into his chambers. We curse the clerks who try to make a deal or cheat a bit; worst of all, if he thinks you did it in order to get a certain outcome not supported by the law. It was your fault, and there is no explanation. It was a joke that we used to make about “strict liability for law clerks”. This was the right rule. We were reminded that “This is the Supreme Court” and not an appeals court. We have a responsibility to do the right thing.

Taylor A.R. This memory was shared by Meehan:

Justice Scalia also “booked”, meaning that no opinion was circulated before Justice Scalia verified its accuracy. A law clerk would bring a cart of all the articles, statutes, and opinions cited in the draft to Justice Scalia for “booking”. After marking up the draft, Justice cross-examined the law clerk to determine if the Justice was right to give a signal of “see”, or if there may be better authorities for the point.

This error could have been avoided if Booking had been made.