Vaccination is far and away the best method for combating the out of control pandemic that is filling hospitals to capacity and has already killed well over 830,000 Americans. Republican governors, other officials, and candidates, as well as the talkers in conservative media (from Fox News Channel on down the food chain) rage against vaccine mandates (even with exceptions for resisters to test regularly). The Biden administration has sought, through OSHA regulations, to protect American workers (and, of course, their customers, families, and neighbors). Based on arguments heard yesterday, I anticipate (with most observers) that the Republican majority on the Supreme Court will agree to issue a stay on this regulation.
First of all, this is consistent with the crusade of the conservative legal movement (led by the Federalist Society) to reign in the modern administrative state. By doing so they intend to take us back, step by step, to the Lochner Era, that is, the pre-FDR court.
None of the members of the majority will have a tinge of regret that their decision will benefit the agenda of the Republican Party and harm a Democratic president.
Second, these ideologues will not be deterred in the slightest by the adverse effects, no matter how severe, of their ruling on working men and women in the country, of the American public, or of the continuing social disruption the pandemic exacts.
I'd like to offer reflections on the second point.
When casting a vote may threaten your life: Recall the April 6, 2020 SCOTUS ruling when the Republican justices won the day (Republican National Committee, Et Al. v. Democratic National Committee, Et. Al.). It was a 5-4 ruling, when Justice Ruth Bader Ginsburg, who wrote the dissenting opinion, was still alive.
At a time when COVID was raging in Wisconsin and the primary election less than a week away, thousands of mostly Democratic voters had not received the absentee ballots they had requested. A federal judge had agreed to allow absentee ballots received six days after the statutory deadline to be counted. The Republican SCOTUS majority, opining that the case turned on a "narrow, technical question," granted the stay requested by the Republican National Committee. The unsigned opinion gave nary a nod to concerns with public safety. Nor with the right to vote.
Justice Ginsburg's dissent (joined by Justices Breyer, Sotomayor, and Kagan) concluded with these words:
The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.
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The majority of this Court declares that this case presents a “narrow, technical question.” Ante, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.
The justices can insulate themselves from harm. Turning to January 2022, let's note that all the justices have been fully vaccinated and boosted. Because of COVID, the Supreme Court building is closed to the public. Although the building if open for official business, no visitors are allowed. All public lectures and visitor programs have been suspended.
The Supreme Court requires all counsel and co-council appearing before the court to test for COVID a day in advance. Anyone testing positive, must appear remotely. Attorneys who appear in person must wear masks (either an N95 or KN95)-- except when speaking. When they conclude, they must leave the courtroom and the building immediately.
The justices, with the exception of Justice Sotomayor (who has a pre-existing condition that makes her highly vulnerable to an infection), have been hearing cases unmasked. During Friday's argument, Justice Sotomayor chose to participate remotely from her office; seven justices wore masks; Justice Gorsuch did not.
Long story short: the justices can dictate the terms of their work, place conditions on their working environment, and protect themselves by any means (vaccines, masks, social distancing, working remotely, and barring public access to the building) that scientific understanding prescribes. For the vast majority of workers in America, this is not the case. In the absence of health and safety regulations, most folks don't have much say regarding their working environment. And the vast majority of workers perform tasks that can't be done remotely.
Fox News protects its own. The situation of the justices is analogous to that of the Fox News Channel's prime time stars. As early as spring 2020 (when Donald Trump as president knew, but was not acknowledging, the dangers COVID posed), Fox News was deep cleaning surfaces in its offices; the protocol included daily sanitizing and disinfecting several times a day. By the end of summer 2021, Fox had required all employees to report their vaccination status. Within a short time, 90% of its employees had been vaccinated, and Fox required the others to test for COVID daily. That hasn’t stopped Tucker Carlson and other FNC personalities from spewing disinformation about vaccines.
There is no surfeit of empathy for the American public among the leadership of the Republican Party. Not in Congress, not in governors' mansions or state legislatures, not on cable TV, and not at the United States Supreme Court under Republican control.