"Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19? An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces and insulated from responsibility for any damage it causes?"
-- Justices Breyer, Sotomayor, and Kagan dissenting in NFIB v. OSHA (January 13, 2022)
Linda Greenhouse highlighted that passage in her recent tribute to Stephen Breyer and his passionate devotion to the Constitution, which he views as "an engine of progress." She writes, "That this argument failed to carry the day speaks volumes not only about how out of step Justice Breyer is with the court’s trajectory but also how out of step the majority is with the kind of fact-based analysis that he has brought to the problems the court is charged with solving."
Ideally, justices would look to the facts and the law when issuing decisions. Not so with the current supermajority on the court. Instead, as I noted recently, they simply make things up.
As Scott Lemieux put it ("A Right-Wing Supreme Court Keeps Pretending Laws Say Things They Do Not"):
The Supreme Court’s recent decision in NFIB v. OSHA, which blocked enforcement of the Biden administration’s test-or-vaccinate mandate for large employers, is disastrous because it will result in more avoidable COVID-19 deaths. But it is also disastrous because it heralds an emboldened conservative Supreme Court eager to ignore the text of statutes to impose its own views of public policy on the public.
The Republican nominees claim to do this in the name of protecting the prerogatives of the people’s elected representatives. This is a cynical inversion of the truth: The only power the Court is protecting is its own.
Lemieux describes the same duplicitous approach regarding voting rights. I've written more than once about John Roberts' decades-long campaign to disable the 1965 Voting Rights Act. As Lemieux notes, while working in the Reagan White House, Roberts urged Congress to require a showing of discriminatory intent to find violations of the Voting Rights Act; Congress rejected this approach; Roberts and the court's conservative eventually imposed the requirement in Brnovich v. DNC (employing "mostly made-up factors," as Justice Kagan noted in her dissent).
Lemieux again:
In essence, a six-justice conservative supermajority “interpreted” the Voting Rights Act as if Roberts had prevailed in 1982, when in fact Congress had repudiated his vision for what the law should look like. The same is true of the Court’s opinion in NFIB: None of the “rules” are found in the text of the statute. They’re simply meant to frustrate the will of Congress whenever Congress does something that leads to results the justices don’t like.
NFIB and Brnovich are especially ominous for American democracy because they leave Congress with no outs. Courts that willfully ignore the text and purpose of major statutes are an existential threat to democratic self-rule, because even if majorities can surmount the formidable obstacles to legislating, Republican-controlled courts can simply rewrite the law to suit their own preferences. In his concurrence in NFIB, Justice Gorsuch claimed to be standing up for “the people’s elected representatives in Congress.” In reality, the Court has found another way to consolidate power in itself.
Paul Campos observes (at Lawyers, Guns & Money): "John Roberts and the Furious Five have ruled that because in 1970 Congress didn’t have the foresight to pass a statute that specifically said that Joe Biden could tell OSHA in 2021 to issue a vaccine mandate because of COVID-19, Joe Biden can’t do that. This is a consistent application of the Republican Supreme Court’s doctrine that statutes written in general terms to deal with a wide variety of issues can only be enforced by Republican administrations."
That aptly summarizes conservatives' goal of crafting a partisan constitution.