The Supreme Court began 2022 with an unusual Friday sitting to hear arguments from the Biden administration, Republican-led states and industry associations about the permissibility of two of the federal government’s vaccine rules amid the ongoing covid pandemic. Rather than wait until the next available space on a day when the court was slated to hear arguments in pending cases, as would typically happen, the court announced in late December that the justices would hold a special sitting for arguments in these cases on Jan. 7.
Reflecting the moment in which we live, when the date arrived, one justice participated from her office at the court, and two of the lawyers arguing were doing so from back home, in Ohio and Louisiana.
The arguments threw into stark relief how the instability of the pandemic era is coinciding with another moment of great change — and resulting instability — in American law. Unless something alters the current trajectory, the new conservative majority will control the shape of the United States’ governing legal principles for the next generation. And as was clear on Friday, the change has already begun.
Ohio Solicitor General Benjamin Flowers argued in a case brought by Republican-led states that a “sweeping” rule by the Occupational Safety and Health Administration requiring large workplaces to institute either vaccination or testing policies was “not necessary to protect employees from a grave danger.”
Flowers was recovering from covid, and he spent his time arguing virtually before the justices. He made his arguments as his home state passed 30,000 deaths from the virus that has disrupted American society and the entire world over the past two years.
Although he acknowledged “that simply the fact that a risk exists outside the workplace doesn’t mean you can’t address it when it’s inside the workplace,” Flowers went on to “dispute … the idea that a risk that is ever-present in all places can be regulated simply because it’s also in the workplace.” In other words, Ohio and other Republican-led states argue, a public health threat can be too great for the agency charged with workplace safety and health to address it in the workplace.
Of course, parties often bring losing arguments to court. What really matters is whether the court picks up an idea and makes it law. Here, Chief Justice John Roberts appeared to be focused on a version of Flowers’ argument in his questions to the Biden administration’s top Supreme Court lawyer, Solicitor General Elizabeth Prelogar.
Roberts’ first question to the Justice Department lawyer was about whether the OSHA regulation should really be adjudged by the court as an OSHA regulation when other government agencies also were implementing policies aimed at increasing vaccination rates. Calling it a “general exercise of power of the federal government” because so many agencies were acting, he asked, “Why doesn’t Congress have a say in this?” and why it isn’t “the primary responsibility of the states.”
Prelogar responded, in effect, that it doesn’t really matter if other agencies are also taking action, as long as the agency before the court is allowed to do what it’s doing.
It was by no means clear that would be enough to save the rule.
The arguments in the OSHA case and a related case about a rule out of the Department of Health and Human Services that requires healthcare workers at facilities that receive Medicaid and Medicare funds to be vaccinated lasted nearly four hours on Friday. News coverage focused on the question of what will happen to the two rules — it appears likely the OSHA rule will be kept from going into effect, while the HHS rule seemed more likely to be allowed.
But the day also marked an unavoidable moment of reckoning. Legal ideas that were confined to solo or two-justice dissents as recently as five years ago can now command a majority of the court. Mainstream conservative legal arguments could get knocked even further right under the new regime.
Roberts brings “major questions” to Biden’s rule
In the OSHA case, the conservative justices — including Roberts, who has at times parted from the five other Republican appointees in favor of more incremental action — appeared open to expanding use of what is referred to as the “major questions doctrine” in order to strike down the OSHA vaccine-or-test rule. That doctrine was described most clearly by Justice Sandra Day O’Connor in a case from 2000 as addressing when Congress would delegate matters of great “economic and political magnitude” to federal agencies and has been invoked more frequently by conservative justices in recent years. It suggests, in short, that “major questions” have to be directly addressed in the laws that authorize those executive agencies to act — the language can’t be, as Justice Brett Kavanaugh put it this past week, “cryptic, vague, oblique, ambiguous.”
Here, while the justices might agree that the OSHA rule isn’t directly barred by the relevant law, they nonetheless could conclude that it is too significant an action to be allowed because it is not directly authorized by the law either.
This approach might seem to make logical sense, but it is no small change. It isn’t a complete dismantling of the modern administrative state, but it could significantly decrease the clarity and stability of administrative law. The Supreme Court’s approach to administrative law has enabled federal agencies, like the Environmental Protection Agency and Internal Revenue Service, to take steps to fulfill their missions across presidential administrations of both parties, creating stability in the law even as different administrations might take different approaches to running those agencies.
Under long-standing Supreme Court precedent, the courts defer to an agency’s rule if the rule is within the agency’s delegated area of expertise, is not barred by statute and is a reasonable interpretation of the relevant law. If the Supreme Court were to take more dramatic steps to undermine the administrative state by reversing that precedent, called “Chevron deference” for the case that established the rule, it would put the executive branch — and Congress — on notice that agency actions would no longer receive the courts’ deference.
Here, should the conservative majority use the major questions doctrine to strike down the OSHA rule, the result would be less of a free-for-all, but there also could be little true guidance for Congress or the executive branch on what happens next. Any time a majority of the court decides a rule is too significant — addressing a major question — and isn’t specifically addressed in the law that authorizes the agency to act, the court could strike it down.
Similar moves could be coming from the court in other areas as the newly bolstered majority finds its way forward. The conservative justices have already made clear that religious liberty will be front and center when those claims are raised, as was seen in covid closure-related cases once Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg. Then there’s abortion, where the five most conservative justices went further than Roberts was willing to go, allowing the enactment of a law that puts clearly unconstitutional conditions on the right to an abortion in Texas. For other possibilities, examine any case in which Justices Clarence Thomas and Samuel Alito issued two-justice dissents over the past 15 years since Alito joined the court.
Already, there have been examples of Justice Neil Gorsuch joining with Thomas and Alito in disagreement with the rest of their colleagues. And though some observers had suggested the emerging existence of “a 3-3-3 court,” with Kavanaugh and Barrett joining Roberts in a slightly less conservative trio at the center of a conservative-majority court, a handful of moves in the past nine months suggests that it is just as likely that, as Kavanaugh and Barrett settle in to their lifetime-tenure roles on the high court, there could be many more instances of them joining the most conservative trio to push a legal agenda that could dramatically reshape the United States.
What this will mean for government is an important question, but a more central question to the daily lives of people in America is what it will mean for America itself.
The court may usher in an era of legal instability
A main goal of a legal system is to provide stability. It provides a common set of guiding rules for everyone under the system’s jurisdiction. And while there is much to be written, said and argued about the ways in which the legal system does not apply equally to everyone, that is a different issue than the phase the American legal system seems to be entering.
If this court does what it appears ready to do, on at least some key fronts, the country could be headed toward a period of great instability in what laws themselves even mean.
Nowhere has that been more clear than in the case of Texas’s S.B. 8, which purports to empower private individuals to bring lawsuits against people they accuse of violating the law, banning abortions after around six weeks. Under the Supreme Court’s precedents, the abortion restrictions should not stand. But, through procedural rules and by avoiding the substantive effect of the law, the five most conservative justices on the Supreme Court have enabled the law to remain in effect for more than four months.
A judge of the U.S. Court of Appeals for the 5th Circuit — which has been dragging its feet on the case at each point in the process — suggested last week that the intermediate court might do best not to take further action on the case challenging S.B. 8 until the Supreme Court issues a decision in the other abortion-related case this term, the challenge to a Mississippi law that bans abortions after about 15 weeks. Such a move would mean that challenge to S.B. 8 would likely remain on hold until June. And, barring any new litigation, S.B. 8 would remain in effect outside of some more narrowly tailored state-court litigation during that time. At that point, the Supreme Court could have issued a ruling that would upend or even overturn Roe v. Wade.
In other words, more instability.
That is just one area of the law. The pending challenge to New York’s handgun-licensing law could lead to an expansion of earlier rulings declaring that the Second Amendment protects an individual right, and not just a collective right, to bear arms. While that would not be a wholesale departure from earlier court decisions, it does nonetheless represent a significant change because the justices had been declining to hear similar challenges over the past decade until the new majority took up this case. An expansive ruling against New York, moreover, could create more instability — throwing into question other states’ gun laws and limiting even the possibility of certain federal congressional action.
And, as was debated at the court last week, the federal government’s ability to set nationwide workplace rules during the pandemic — and the implications for future workplace regulations — remains up in the air today.
The future of the law — particularly whether existing legal precedents can be depended upon — is uncertain. Religious liberty claims, criminal law cases, racial discrimination and sex discrimination cases, LGBTQ rights, voting rights — aspects of these areas of the law and others could be affected. That means Americans’ lives are not stable.
At home, in the workplace and everywhere else, at least some of the rules that Americans have been living under will be changing. People’s decisions about how and when to form a family, the times and ways in which their freedoms can be taken from them, and their ability to choose their civic leaders are among the basic parts of life that could be under scrutiny from the court. And those changes will cause even greater instability in the wake of ongoing instability from the pandemic, which itself followed the economic crisis of a decade earlier and the reshaping of American life — and wars — that followed the attacks of Sept. 11, 2001.
Instability is not new. But an era of dramatic changes to the fundamental legal principles under which the United States has been operating is a different kind of instability. And it is already here.