Ronald Brownstein, writing in the Atlantic ("How Manchin and Sinema Completed a Conservative Vision”), traces “a resounding triumph for Chief Justice John Roberts in his four-decade quest to roll back the federal government’s role in protecting voter rights.”
In a series of rulings over the past 15 years, the Supreme Court, often in decisions written by Roberts himself, has consistently weakened federal oversight of voter protections and struck down federal regulations meant to reduce the influence of money in politics. Almost all of those decisions have unfolded on a strict party-line basis, with the Republican-appointed justices outvoting those appointed by Democrats.
Those decisions have had an enormous practical impact on the rules for American elections. But many voting-rights advocates say that the rulings have been equally important in sending a signal to Republican-controlled states that the Supreme Court majority is unlikely to stand in their way if they impose new restrictions on voting or extreme partisan gerrymanders in congressional and state legislative districts.
Roberts’ relentless quest to stifle voting rights goes back decades (to his service in Reagan’s White House). Brownstein observes:
Roberts, who served as a young clerk to conservative Supreme Court Justice William Rehnquist and as a Justice Department assistant in the Reagan administration, has long expressed hostility to federal oversight of voting and election rules. As the journalist Ari Berman recounted in his 2015 book, Give Us the Ballot, Roberts “led the charge” against the bipartisan 1982 reauthorization of the Voting Rights Act, which ultimately reversed a Supreme Court decision (supported by Rehnquist) weakening one key section of the law. Roberts wrote “upwards of 25 memos” opposing the legislation’s provision requiring that the Justice Department prove only discriminatory “effect” rather than purposeful “intent” in order to block state or local voting restrictions. (The Court had ruled the opposite, severely limiting the law’s applicability.)
Roberts’ animus has been unwavering:
That approach has guided Roberts on the Supreme Court. As the Harvard Law School professor Nicholas Stephanopoulos, an expert in voting law, wrote in a 2019 law-review article, “The Roberts Court has … never nullified a law making it harder to vote.” To the contrary, in a series of landmark decisions, it has nullified efforts to ensure voter access, combat gerrymanders, and to limit political contributions and spending.
While the Chief Justice (with other justices) insists that the court is not partisan, in the most consequential rulings on voting rights, campaign finance, and gerrymandering – Shelby County v. Holder; Citizens United v. FEC; Rucho v. Common Cause; Brnovich v. Democratic National Committee – the court has split strictly along partisan lines (with one exception): every conservative (that is, Republican-appointed) justice has ruled in favor of the Republican Party’s agenda and every liberal (Democratic-appointed) justice has dissented. (The single exception: John Paul Stevens joined the liberal justices in the minority in opposing Citizens United.)
In cases where no liberal justices can be found in the majority, this Republican-dominated court takes sides nearly unerringly with the Republican Party. There is no legal theory, judicial principle, or constitutional basis, and certainly no commitment to calling balls and strikes, that better explains how the conservative majority’s agenda – in the cases it takes and the decisions it hands down – coincides so well with the agenda of the contemporary GOP.
OSHA rule to protect American workers
Consider last week’s granting of a stay in NFIB v. OSHA. As Linda Greenhouse observes ("What the Supreme Court's Vaccine Case Was Really About"),
The fact is that this dispute — which, remarkably, found 27 states aligned against the federal government — was never principally about the vaccine. OSHA’s “emergency temporary standard,” under which employers of 100 or more people were to require vaccination or weekly testing, was mainly a target of opportunity. It offered the conservative justices a chance to lay down a marker: that if there is a gap to fill in Congress’s typically broadly worded grant of authority to an administrative agency, it will be the Supreme Court that will fill it, and not the agency. “Placing constraints on the administrative state,” as Eugene Scalia, Justice Antonin Scalia’s son and secretary of labor during the last year of the Trump administration, observed in a Wall Street Journal op-ed in praise of the decision, is “a defining concern of the Roberts court.”
This court aims to do what Republicans who seek elective office – to the presidency and the Congress – have failed to do: to hack back against Democratic policies that GOP party leaders and donors don’t like. This is a court determined to impose a partisan constitution on the country. The court’s conservative majority seeks to disable (small-d) democratic politics, imposing constraints not found in the constitution or in federal statutes. These constraints serve to rule Democratic policy choices out of order; thus, the court's decisions advantage the Republican Party at the expense of the Democratic Party (regardless of which party wins elections).
By a 6-3 vote the conservative justices granted a stay to an emergency OSHA rule to protect American workers from infection by COVID. Justices Breyer, Sotomayer, and Kagan began their dissent with the recognition of the human toll brought on by the pandemic:
Every day, COVID–19 poses grave dangers to the citizens of this country—and particularly, to its workers. The disease has by now killed almost 1 million Americans and hospitalized almost 4 million. It spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.
Pretext, not text
Conservatives have affirmed for decades that they rely on close reading of the text (‘strict constructionism’) of the Constitution and of federal statutes, in interpreting the law. That's not evident in this case. The three liberals, writing in dissent, noted that, “OSHA’s rule perfectly fits the language of the applicable statutory provision.” They demonstrate this, phrase by phrase: “new hazard,” “physically harmful,” “grave danger,” “necessary,” and so on. In their deliberate, conscientious assessment, they show that the rule perfectly fits the language of the statute.
While the statute in simple, unambiguous language "plainly authorizes" the rule, the six conservative justices object by departing from the text of the statute and inventing a new standard:
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
In 1970, when Congress passed the Occupational Safety and Health Act, it did not foresee the pandemic that began in 2019. Contrary to the court's conservatives, the law Congress passed offers "clear congressional authority" to provide broad protection to American workers from hazards encountered on the job. Since a once in a century pandemic, often spread person to person in workplaces across the country, could not be foreseen, Congress delegated authority to an executive agency to step into the breach.
As the dissenters noted, most folks have little control over their workplaces. (In contrast, compare how thoroughly the justices can and do insulate themselves from harm.) Americans can choose not to eat in a restaurant, go to the movies or a gym, attend church or a concert, or venture anywhere else "that people gather" -- unless they are supermarket cashiers, waitresses, retail clerks, bus drivers, or millions of others who must go to work. These folks rely on OSHA to provide a safe working environment. The conservative justices offer not a whit of empathy or consideration for such working Americans. Echoing right wing talking points, the conservatives characterize the mandate (even with medical and religious exemptions) as an onerous imposition:
A vaccination, after all, “cannot be undone at the end of the workday.”
Nor, of course, can acquiring an infection while on the job. Not every one of the 850,000 Americans who have died of COVID were infected at work or (as with a supermarket customer) at someone else's workplace. It's likely, though, that tens of millions of Americans got infected at their (or someone else's) workplace.
Unbounded arrogance
The conservative justices note:
We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs.… For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.…
It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.
"It is not our role to weigh such tradeoffs." Six unelected, unaccountable justices -- with substantial control over their own working environments, ensuring their own protection -- bar an elected Congress from requiring safe workplaces for millions of Americans during a raging pandemic. Protecting Americans from disease and death takes a back seat to the conservative legal movement's campaign to place constraints on the administrative state.
More shameful still: three justices would have gone further. Justice Gorsuch's concurring opinion (joined by Justices Thomas and Alioto) invokes "the nondelegation doctrine," which is to be found nowhere in the Constitution. It is an invention of ideological, results-oriented conservatives who disfavor government regulations, including health and safety protections. This threesome appears ready to impose a much more sweeping prohibition on the ability of the legislative and executive branches of government to enact and enforce regulations to protect the public.
