In an extraordinary move, the U.S. Supreme Court announced on Wednesday evening that it would hear oral arguments in two key federal vaccine mandate legal cases, with a potentially momentous outcome for the country. The nation’s highest court moved the evolving federal cases from its so-called “shadow docket” to its explicit caseload, in a moment of extreme political and social tension over vaccine mandates.
In an extremely unusual move, the U.S. Supreme Court announced on Wednesday evening, December 22, that it was scheduling oral arguments to be held on January 7, in order to consider two federal vaccine mandates that have moving forward on what is known as the high court’s “shadow docket”—tin which the court decides emergency applications without a full process of hearings. The cases involve two of the Biden administration’s three federal vaccine mandates: the mandate for healthcare workers at all patient care organizations that receive Medicare and/or Medicaid reimbursement, which was issued in the form of an emergency rule by the federal Centers for Medicare and Medicaid Services (CMS); and the mandate issued by the Occupational Safety and Health Administration (OSHA), which requires that all business organizations with 100 or more employees require employees to be vaccinated; that was issued in the form of an emergency temporary standard (ETS).
A major development in the OSHA-related case had taken place on Friday, Dec. 17, when a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, located in Cincinnati, reversed an initial circuit court ruling, finding in favor of OSHA and the Biden administration, and affirming OSHA’s vaccine mandate for employers with 100 or more employees. The full opinion can be found here.
The New York Times’s Adam Liptak wrote late Wednesday night that “The Supreme Court said on Wednesday evening that it would hold a special hearing next month to assess the legality of two initiatives at the heart of the Biden administration’s efforts to address the coronavirus in the workplace. The court said it would move with exceptional speed on the two measures, a vaccine-or-testing mandate aimed at large employers and a vaccination requirement for certain health care workers, setting the cases for argument on Friday, Jan. 7. The justices had not been scheduled to return to the bench until the following Monday.”
As Liptak explained it in his report, “Both sets of cases had been on what critics call the court’s shadow docket, in which the court decides emergency applications, sometimes on matters of great consequence, without full briefing and argument. The court’s decision to hear arguments on the applications may have been a response to mounting criticism of that practice. The more sweeping of the two measures, directed at businesses with 100 or more employees, would affect more than 84 million workers and is central to the administration’s efforts to address the pandemic. The administration estimated that the measure would cause 22 million people to get vaccinated and prevent 250,000 hospitalizations. The second measure requires health care workers at hospitals that receive federal money to be vaccinated against the virus. It ‘will save hundreds or even thousands of lives each month,’ the administration wrote in an emergency application. The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges. But the new cases are different, because they primarily present the question of whether Congress has authorized the executive branch to institute the requirements.” Importantly, he wrote, “The answer will mostly turn on the language of the relevant statutes, but there is reason to think that the court’s six-justice conservative majority will be skeptical of broad assertions of executive power. The last time the Supreme Court considered a Biden administration program addressing the pandemic — a moratorium on evictions — the justices shut it down.”
Meanwhile, CNN’s Tierney Sneed and Ariane de Vogue wrote late on Wednesday night that “The arguments were scheduled after Supreme Court Justices Samuel Alito and Brett Kavanaugh were asked to intervene in lower court disputes over the mandates. Kavanaugh had been asked by challengers to the employer mandate to reverse an appeals court ruling that said the administration could enforce its vaccine-or-testing rules for large companies. Kavanaugh and Alito had separately been asked by the Justice Department to reverse appeals court orders against the health care worker requirement, which applies to health care staff at providers that participate in Medicare and Medicaid. The appeals court orders have left the mandate frozen in about half the country.”
Sneed and de Vogue added that, “For now, the court is leaving in place the status quo around the requirements. The Biden administration has said it will not begin enforcing the employer mandate until January 10, and the government has said it's not implementing the health care worker mandate while the legal challenges play out.” And they noted that “The White House said Wednesday that it is ‘confident in the legal authority for both policies.’ ‘Especially as the US faces the highly transmissible Omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed,’ White House press secretary Jen Psaki said in a statement. ‘At a critical moment for the nation's health, the OSHA vaccination or testing rule ensures that employers are protecting their employees and the CMS health care vaccination requirement ensures that providers are protecting their patients. We are confident in the legal authority for both policies and DOJ will vigorously defend both at the Supreme Court.’”
Meanwhile, The Washington Post’s Robert Barnes noted in his report late on Wednesday evening that “More than half the states and coalitions of business and religious groups are asking the justices for emergency action to block the OSHA rules, which would cover an estimated 80 million workers. And the Biden administration asked the court to intervene to lift lower-court decisions that have blocked a vaccine mandate for what is estimated to be about 17 million health-care workers.”
Further, Barnes wrote, “The court had called for additional briefing in those cases by Dec. 30. Under its normal procedures, the justices would then make a decision about whether to block or allow the policies while litigation continued. But the court has been criticized for decisions issued under its emergency docket, which has also been called its “shadow docket.” This makes the third time this term the court has instead scheduled public arguments. The previous cases involved a controversial Texas law that restricts abortion, and the other concerned the rights of inmates to have spiritual advisers close by at the time of execution.”
And former law professor Amy Howe, in her Howe on the Court online publication Wednesday evening, wrote that, “Shortly after receiving the emergency requests last week, the court set a deadline of Dec. 30 for responses in both disputes. The decision on Wednesday to hear oral argument on the emergency requests came as somewhat of a surprise: It seemed more likely that the court would dispose of the requests with a brief order, as it normally does on the so-called “shadow docket.” Instead, and perhaps in response to criticism of the increased use of the shadow docket to litigate major policy disputes, the justices fast-tracked the cases for oral argument, as they have already done twice this year when fielding requests for emergency relief in the battle over Texas’ controversial abortion law and a request by a Texas inmate to have his pastor touch him and pray out loud during his execution.”
Perhaps concerningly for those who favor the mandates, Howe wrote that “[T]he formal question in both disputes is whether the government should be allowed to enforce the policies while litigation challenging them continues. But the justices’ views on whether to grant emergency relief will likely be influenced by their views on the merits of the underlying challenges themselves.”
Ian Millhiser, a senior correspondent for Vox, and someone who received a J.D. from Duke University, and is the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, wrote a detailed analysis of this legal moment that he updated late Wednesday evening, after the news of the Supreme Court’s setting oral arguments broke.
Millhiser wrote Wednesday night that, “The first bucket of cases involves an emergency rule, promulgated by the federal Occupational Safety and Health Administration (OSHA), which provides that most employers must either require that their employees be vaccinated or take certain steps to mitigate the spread of Covid-19. Shortly after this new rule took effect, a right-wing panel of the United States Court of Appeals for the Fifth Circuit raced to hand down an order blocking it. But that case was eventually transferred to the Sixth Circuit, and a more centrist panel of Sixth Circuit judges reinstated the rule. That means that, for the moment, the OSHA rule is in effect — but that could change once a Supreme Court dominated by Republicans appointees gets its hands on it.”
As Millhiser noted, “The second round of cases involves a rule, promulgated by the Center for Medicare and Medicaid Services (CMS), which requires nearly all health care workers to be vaccinated in order to protect their patients. That includes the overwhelming majority of nursing home workers, who interact daily with older residents who are especially vulnerable to Covid-19. While there are plausible, but not airtight, arguments that the OSHA rule exceeds that agency’s statutory authority, the legal arguments for the CMS rule are much stronger. As Jonathan Adler, a conservative law professor and one-time crusader against Obamacare, writes: ‘The CMS rule can be justified as a measure to protect Medicare and Medicaid recipients, which is something CMS clearly has the authority to do.” Nevertheless, the lower courts are split on whether to uphold the rule.’”
Further, Millhiser wrote, “When religious conservatives seek exemptions from their legal obligations, the Court’s five most conservative members typically treat those requests as matters of transcendent importance. One of the Court’s first major actions after Barrett took her seat in the fall of 2020 was to permit houses of worship to defy occupancy limits intended to prevent religious services from becoming superspreader events. But [Justices Brett] Kavanaugh and [Amy Coney] Barrett have thus far rejected requests from health care workers who claim they should be exempted from vaccination mandates on religious grounds. That’s a sign that they may be more open to pro-vaccination arguments than their previous records otherwise would suggest.”
Meanwhile, on the MSNBC program “The 11th Hour,” Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University, told host Ali Velshi late on Wednesday night that “One thing is shows is that this court has at least heard some of the criticism of its shadow docket… We saw that they used it in the Texas abortion case and an earlier case involving an execution. “This is a really interesting move, one suggests that the court is amenable to outcries from the public,” Murray said. But, she quickly added, “This is a court that is going to be skeptical of executive overreach, and it’s likely that the Biden administration is going to face some tough sledding” in oral arguments.