Strict Scrutiny - Putting the F in FDR

Episode Date: January 14, 2022

Melissa, Leah, and Kate recap the Supreme Court’s opinions invalidating the Biden administration’s test-or-vaccinate policy for employers with more than 100 employees, and the Court’s grudging acceptance that employees at federally funded healthcare facilities should not be able to kill their patients. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. This is an emergency episode. As you may know, we recently had a hearing on two of the Biden administration's efforts to curb the pandemic and to stop the spread of the coronavirus in various workplaces.

Well, today, January 13th, we got a decision on those two mandates from the court. So Leah, were we surprised or did we call this? I think this was very much foreseen in a extremely Cassandra-like fashion. Not only did we say the court was going to invalidate the Occupational Safety and Health Administration's policy requiring testing or vaccines in the workplace, but also there was a possibility the court might uphold the Center for Medicare and Medicaid Services requirement that healthcare workers at federally funded facilities get vaccinated. And that's what the court ended up doing. The court stayed the OSHA rule that requires employers to either have testing or vaccination regimes. And then it

displaced the stays that had prevented the CMS rule, allowing the Center for Medicare and Medicaid Services to require their employees to get vaccinated. And I think we also kind of predicted the grounds on which the court was going to stay the OSHA rule too. So maybe let's quickly summarize those grounds and then talk next steps or what to make of these decisions. Sounds good. Should we maybe start with just sort of setting the scene? So the OSHA rule is struck down in a per curiam opinion, right? So there's no noted author. It struck me as a Roberts opinion. What did you guys think about the authorship before we get to the substance? You guys agree? So I think it's possibly Justice Kavanaugh, but I think it's one of those two. Yeah. So we don't know, right? We're just speculating.

But there's a separate concurrence that does have an author attached to it, Gorsuch, joined by Thomas and Alito. We will definitely talk about that. Surprising no one. Surprising no one. We're going to talk about that one. Don't worry. So let's talk about the basis insofar as it is discernible on which the per curiam court held that the OSHA rule needed to be set aside. I mean, I guess just is that even though the OSHA, the Occupational Safety and Health Act, gives broad authority to OSHA, that broad authority

wasn't broad enough to support OSHA's test or fax policy for employers of 100 or more employees, largely because COVID does not solely spread in the workplace. That seemed to be the basic logic of the opinion. Did I miss something? No, I think that's exactly right. Even though OSHA has health in its title, like it's there to deal with questions of health in the workplace, the court determined that because COVID is about health, but is not confined to the workplace, it is beyond the scope of OSHA. So it was basically, hey, agency, stay in your lane,

deal with machines that can kill people in the workplace, deal with blood-borne pathogens in certain industries, but stay away from COVID, perhaps the most existential health crisis that we have seen in a generation. That's not for you, Occupational Safety and Health Administration. Yeah. So what the court says is that OSHA is addressing a threat that is untethered, comma, in any causal sense from the workplace. And just to play out some of the possible implications of this theory, I mean, I could, you know, be injured by a tractor in at home in Minnesota. Can OSHA not regulate tractors? You know, I could be injured by a fire. Can OSHA not regulate tractors? I could be injured by a fire. Can OSHA not regulate fire hazards because that is something that exists outside the workplace? The possible

implications of this theory are unclear. It's also completely unmoored from the actual statute. Nothing restricts OSHA to just regulating hazards that exist solely in the workplace. That is just the majority's gloss on this statute. Yeah, and I think we should, when we get to the dissent, which is so like fire, fire, fire, this dissent, I think we can talk about why the statute so clearly does authorize what OSHA did here. But I will say that when the per curiam opinion does cite from the statute that empowers OSHA, I thought it was really telling that there was this kind of editing that kept happening, which is the throwing of italics into the statutory excerpts to underscore workplace employment. So occupational safety, they italicize occupational,

provide safer, healthful employment, emphasis added. So they sort of acknowledge, and it's not adding words to the statute, but it is clearly throwing emphasis that doesn't actually exist in the statute itself. But right. So basically that is the thrust of the objection that the per curiam majority identifies that though OSHA clearly has authority to regulate workplaces and though COVID clearly does spread wildly in workplaces because it also spreads elsewhere, that undermines the authority of OSHA to regulate as it is regulated. And a couple of other points maybe about the per curiam opinion. The opening characterizing this as a vaccine mandate was so disingenuous, right? This is a vaccination mandate. And then at the end of the opening paragraph, subject to an exception, like, you know, if you test or mask. And it's like, as we said in our

debrief of the argument, that is just an inaccurate characterization of what this rule purports to do. It is a test or vax mandate. And I think the majority just begins by completely mischaracterizing what it is OSHA has done here. I just want to highlight again, the absurdity of an institution that has really robust protections for curbing the spread of the coronavirus within its own walls, weighing in on whether an agency that has delegated authority from Congress can offer the same kinds of protections for ordinary Americans. I mean, like, this is like counter-majoritarianism run amok. A couple of other things to highlight. One, in One, again, in our debrief of the arguments,

we shouted out Leah's excellent debunking anti-novelty article. And indeed, one of the substantive objections that the per curiam raised about this mandate was that never before has OSHA sought to do anything quite like it, right? OSHA has never before imposed- Leah, did you drink when you read that? Did you drink? It was just like, you know, I know that there are real galaxy brains serving on the Supreme Court, but the idea that it is suspect because OSHA hasn't tried to impose a vaccine requirement before, when there hasn't been a pandemic like this before during OSHA's tenure, is just, it's absurd. It is an argument that refutes itself merely when you describe it. And yet they think this is, and this is, you know, part of their

argument against the OSHA policy. Well, I mean, another thing that was also kind of a dynamic evident in the oral arguments that I think you saw in the opinion was that there was this sort of suggestion that there was something nefarious afoot in that the OSHA rule followed and was part of a more comprehensive federal government-wide policy to incentivize and increase and, in some instances, require as one option vaccination. Like, you know, this was all leading up to vaccinations and vaccinations was the boogeyman. And maybe we should have been on alert from the Dobbs argument when Justice Barrett made that comparison between vaccinations and abortion. But yes, I think you're right. Like what this really is about is not providing options to secure workplace, but like requiring everyone to get this vaccine. But there's something it's some kind of gotcha that the federal government is focused on trying to keep people from catching a sometimes deadly virus. Like, yeah, I mean, I think it's right.

It's like very Fox News, like this, like, you know, the vaccine has a microchip in it. And once you have it, you can like you're going to be a 5G cell tower. You can't do anything about it. It's permanent. Right. Yeah. You can't. Yeah. So. So just to recap, the per curiam's reasoning is one COVID isn't related to the workplace. A nice contrast or test to that argument is the fact that the Supreme Court's own website says out of a concern for the health and safety of Supreme Court employees, the Supreme Court building will be closed to the public until further notice. Checkmate, I don't know who. But that's the first argument. Second is that OSHA hasn't previously imposed vaccination or testing

regimen like this, i.e. it's new. And the last and final argument that we should end on, because I think it will segue into the Gorsuch concurrence, is the so-called major question doctrine, which we have previously discussed on our debrief episode, as well as others. The major questions doctrine is the idea that if Congress wanted to authorize the agency to do something major, i.e. like this vaccination and testing regimen, it would have clearly authorized the agency to do so in a statute. And those are the three grounds. It's a limit on Chevron deference because if under ordinary Chevron deference, the agency where the statute is ambiguous would have the

authority to interpret it in the manner that it sees fit. So this is like a carve out for cases that are deemed major questions. Well, it used to be, but I think it's now a standalone doctrine that is completely independent of Chauvin. You're not supposed to give it all away at the beginning of the podcast. Right. Okay. Okay. We'll get to the Gorsuch, but yes. And without really identifying this doctrine by name, the percurium says, look, we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance. Again, citing Alabama Realtors, the case involving the CDC eviction moratorium, another shadow docket case clearly making important law. The court says there can be little doubt that OSHA's mandate qualifies as an

exercise of such authority. Does the act authorize the secretary's mandate? It does not. And then sort of circling back to the fact that OSHA doesn't have, at least as the per curiam majority reads the statute, broad health regulatory authority rather than just this kind of workplace specific authority. But yes, we should segue maybe to the Gorsuch concurrence, which does much more to develop this sort of new major questions doctrine on steroids, which is, I think, what we're now facing. Do you not get the vibe that this Gorsuch concurrence is like, you know, like when you take your dog out and he pees around things that he wants to mark as his own?

Neil Gorsuch is like destroying the administrative state. That's my beat. That's my beat. When you think of destroying the administrative state, think of neil gorsuch exactly exactly exactly i will say i don't think at least shadow i don't think female dogs do it quite the same way i don't know if stevie does all around the neighborhood to mark her territory oh my god shadow is like this extremely dignified lady who just like goes for walks, takes one long pee in a place she carefully selects,

and then goes on with her day. She just doesn't do the marking thing. She's the RBG of dogs. She's just transported from place to place in silk pants boots. No. Back to Neil. Okay, so Neil Gorsuch is not content

to let this per curiam opinion demolish the Biden administration's major initiative to curb the spread of COVID. He's like, no, no, no, I need to stake my own ground for how to do so, as well as how to constrain the administrative state slash debilitate it for all perpetuity. So what is this concurrence about? What does Gorsuch kind of lay out? As he attempted to do unsuccessfully at oral argument, he's like, let me tell you what this case is about. It's about who decides. And it's not about the courts deciding. It's about Congress and the agencies. And sometimes the courts. It's about Congress and the agencies. And sometimes the court's deciding that Congress as opposed to the agencies. Like that was the second part. And he throws in the states

because really when it came down to it, if Congress tried to do this through statute, like who knows, I doubt he would let it stand. But so it's really, I think the states of anyone that he thinks has the authority to do this, but he says Congress or the states, but certainly not these unelected bureaucrats. That is very interesting, Kate, because he does spend a lot of time talking about the

sort of general state police power to legislate in favor of public welfare and public health. At no point will he cite Jacobson, the 1905 case, that would be the perfect precedent for such a proposition. So I, again, the amount of staying on mission that was involved in this opinion is really admirable. So yes, who decides, pee in a circle around it and do not cite Jacobson. All of those vibes were hit. So just to unpack this a little bit, because I want you to make clear again, something we discussed on the Debrief episode that I think is important to underscore. The idea that it is not the court deciding whether this is a proper policy is, I think, just belied by the majority's actual reasoning in the per curiam. I mean,

the major questions doctrine itself is about the idea that the law, the law governing what agencies can do, should be different when an agency does something involving a major question and whether something is major or not is inescapably and inextricably linked with what the policy is and a judgment about the underlying policy. I mean, you need only compare what the majority says at one point in the procurium when it's like, it's not our role to weigh such trade-offs, when it's talking about balancing the equities, with the end of the opinion when it says requiring the vaccination of 84 million Americans selected simply because they work for employers certainly falls in the latter category of major questions. That's the extent of their analysis,

and it's just normative hand-waving about their intuitions about the underlying policy. And one of the ways you know that they have reverse engineered a set of explanations around a policy outcome that a majority of them favor is a line in which... So Leah, you were just talking about the major questions doctrine. There's then a segue from the discussion in the Gorsuch opinion of the major questions doctrine, there's then a segue from the discussion in the Gorsuch opinion of the major questions doctrine to the non-delegation doctrine, which the Gorsuch opinion says, look, these two are closely related for decades. In fact, now they look almost identical. Right, exactly. Yeah, so what space there is between them, I think it's a big question coming out of his opinion. But after sort of saying, basically, the major questions doctrine is a way to enforce the kind of separation of powers values embedded in the non-delegation doctrine, right, the idea that there is a limit on how much a power Congress can give to agencies at all, not just how clear it has to be in doing it, but how much it can do it at all consistent with the Constitution and the separation of powers.

But after sort of saying, you know, waving a hand at the major questions doctrine and then waving a hand at the non-delegation doctrine, the opinion says, whichever the doctrine, the point is the same, which is literally like, LOL, you lose. That's the point. Exactly. Like, it doesn't matter how I destroy the administrative state. The point is I got there eventually, right? Like, any stick to beat a dog. I think it's more than just any stick will do.

But like, the confluence of two sticks means we'll get it done in half the time. And to the point of the major questions, Dr. Amy, I think if you think sort of as a practical matter, any major issue that an administrative agency would undertake or that Congress would task an agency with undertaking is going to necessarily be something huge, like income inequality, climate change, universal health care. And they're basically saying, whether it's through the non-delegation doctrine or through this major questions doctrine, none of it can fly. So it's like basically kneecapping with both knees any sort of effort to address these

massive existential problems that we face as a society. Right. Ambitious efforts, regulatory, are basically- Tinker at the edges, but don't do anything major. Yeah. Right. And it's also important, I think, to situate this in the political context, which is in a world with the filibuster, where Congress really isn't enacting major legislation, to the extent we get policy changes,

they are going to go through administrative agencies. And the court is just dismantling the administrative state and kneecapping, you know, Democrats' ability to address climate change, address COVID, address whatever, through the mechanisms they actually have to do so. Okay. Before we get to the dissent, I just feel like I wish we had Roger Jean here to read the ending of the Gorsuch. I thought you were going to say, I wish we had Roger Jean here to do something else. After the recording stops. I'm happily married. I don't know about you.

I feel like you have previously stepped in to fill his shoes with respect in reading some of the Gorsuch excerpts. The end of the opinion, respecting those demands. I mean, I'm happy to try. I won't do it justice. But I do think that this is like this goes in. You know, this is the constitutional as opposed to statutory Gorsuch, you know, sort of greatest hits burn book, but respecting, but let me give it a shot. He's talking about the demands of the constitution. You have to have a really deep voice. Yeah, exactly. Respecting those demands may be trying in times of stress, but if this court were to abide them only in more tranquil conditions,

declarations of emergencies would never end, and the liberties our Constitution's separation of power seeks to preserve would amount to little. So basically, this concurrence is like a constitutional gin and tonic, just to take the edge off, calm you down so you don't do anything crazy, like try and deal with a global pandemic. Right, or like a comet, a planet killer comet, like flying at Earth. We have to acknowledge that tweet. David Knoll of Rutgers is totally underrated. He won Twitter. He won Twitter today. Won Twitter.

David Knoll, well played. We're sending you something. We don't know what, but we're sending you something. Let me read the tweet. It says, Don't look up was really good, but for the sake of accuracy, it should have had the Supreme court stay nasa's attempt to

divert the asteroid boom like that's amazing i was just imagining the last line of that gorsuch opinion which is something like if the court does not enforce the constitution in the face of a planet killer event none of us is truly free right is it even worth it? This is Neil Gorsuch being like, well, but actually the Constitution is a suicide pact, right? That's what I think about it. Give me liberty and give me death. Yeah, exactly.

Real, like I said, real galaxy brain vibes. Well played, David Knoll. Rutgers is lucky to have you. One additional thing on the Gorsuch concurrence before we go on to the dissent. I can't help but note, we have this pre-recorded episode with two of my colleagues, Julian Mortensen and Nick Bagley, about their fantastic historical work debunking the basis of the non-delegation doctrine.

You mentioned, Melissa, the mission-like orientation and vibe of this Gorsuch concurrence. And I think his citation and engagement with the academic literature is further evidence of that, not even deigning to acknowledge the in-depth historical work that Julian, Nick, and Nick Perillo have done, suggesting there is zero historical basis for the non-delegation doctrine. He's just like, let me cite a bunch of my friends. And like, they're cool with it. And to be clear, the article that should have been cited is called Delegation at the Founding, and it appears in the Columbia Law Review by Nicholas Bagley and Julian Mortensen. And again, the fact that it wasn't mentioned is really just an attention to the mission.

Okay. Should we go on to the dissent? Let's go on to the dissent. Unusual joint dissent, right? It doesn't identify an author. And I feel like there were people on Twitter describing this as a Breyer dissent. And I was like, no, it is not.

He is on it. But it is authored by Breyer, Sotomayor, and Kagan. Speaking with one voice. Yeah. For a change. Yeah. I mean, look, there's some famous, you know, the Casey opinion, like McConnell versus FEC, the NFIB dissent. Like there are, of course, examples of not, you know, of multiple author opinions, but there are very few and far between. So this is significant. I mean, a lot of it seems like clearly Kagan, but I'm sure that they probably wrote different parts. And basically the energy from this was Jennifer Lawrence's character

in Don't Look Up. That was the energy of this opinion, right? You should stay away crying every single night. See, I saw a movie of you guys over the break. So this is amazing. We're both like agog. It was so good. So maybe we can just cover kind of two points at the dissent.

One is the point Kate alluded to previously, which is the dissent analysis for why this policy was clearly authorized by the statute and the agency had the authority to enact it. And the second is the closing, which a bunch of people have already highlighted. So does one of you want to kind of summarize the statutory analysis? Yeah. I mean, I just think this is the only opinion that actually engages with the text of the statute that gives authority to OSHA. And it just makes clear both that the fact that this was promulgated as an emergency temporary standard, which the court doesn't actually use that as a basis on which to set the rule aside, but is clearly really skeptical that it would satisfy. It's like, ah, you know, sort of alludes to independent problems with this having been done as this ETS and satisfying the ETS standard. But more specifically, as to the substantive

statutory authority that OSHA has under the statute, this opinion alone really engages with the text and I think says extremely clearly that OSHA has the authority to regulate workplaces, to regulate workplaces, to prevent workplace harm, to regulate new hazards, that indeed it has not only the authority but the duty to act to address and mitigate workplace harms. And so it's not even a close question that there's statutory authority here. So there's also some real pettiness in this opinion. So on page 12 toward the end, someone of this three-person triumvirate notes, underlying everything else in this dispute is a single, simple question, Neil. Who decides how much protection and of what kind American workers need from COVID-19? I think Justice Sotomayor or Elena Kagan put that in.

Yeah, I don't really see that emanating from Justice Breyer's pen. From the pen? No, no. But I was there for the snark. I appreciated the snark. And they note, who do we charge with this kind of question? Like, is it an agency with expertise in workplace health and safety acting as Congress and the president authorized? Or is it a court lacking any knowledge of how to safeguard workplaces? Have you seen this guy to my right? Or is it to my left? Who cares? And insulated from responsibility for any damage it causes. And that I thought was the Elena Kagan line. What did you think? Oh, yeah. I mean, the fact that Neil Gorsuch insists on continuing to go maskless in the workplace is pretty good

evidence about why OSHA needs to regulate the risk of COVID in the workplace, because you work with people who make bad decisions and do things that needlessly expose you and your colleagues to COVID. So that's one piece of the dissent, just the statutory analysis of how this statute doesn't speak about dangers that only are in the workplace or dangers that are uniquely caused by the workplace, but instead just talks about dangers and risks in the workplace, which COVID assuredly is. I know we talked a little bit about Justice Gorsuch being unmasked in the last oral arguments. He was also unmasked in the arguments this week, which Justice Sotomayor continued to participate in remotely. And Justice Breyer also participated remotely one day, but that was because he had a

false positive test and did not come in for that reason. But there's a lot of energy in showing up to work unmasked when you have a colleague with a chronic health condition seated immediately to one side of you. And then writing this concurrence, like there's just like the shamelessness of it is kind of staggering. I mean, I'm not sure if it's shamelessness, obliviousness. I'm not sure how I would describe it, but it's something. Or the cruelty is the point, right? Just all of it. Anyway. Yeah. And I mean, not only does this opinion make extremely clear how grounded in the statute this action was, it also answers this novelty objection, right? If the standard is far reaching, yeah, it applies to many millions of American workers. But also, you know, it has

receipts for plenty of other OSHA actions that have been very sweeping. But admittedly, this is unique. But so too is this crisis, right? So she says it. I'm saying she because this feels like a cake and paragraph to me. But the opinion says, you know, if the standard is far-reaching, it no more than reflects the scope of the crisis. The standard responds to a workplace health emergency unprecedented in the agency's history. So, yeah, it's not going to take action that's going to have a precise analog with previous action. That's not a problem. So then I think the second part of the joint dissent that we wanted to highlight was the closing, which ends with some really pointed language about what the court has done. So as we noted, it has this language about how underlying everything else in this dispute is a single simple question, who decides?

But then there is also this remarkable passage where the joint dissenters say when we are wise we know not to displace the judgments of experts acting within the sphere congress marked out and under presidential control to deal with emergency conditions today we are not wise. And, you know, I mean, I think that pretty much sums it up. They just blew up, you know, the administration's efforts to contain COVID in the workplace. You know, maybe the policy wasn't perfectly suited to Omicron, but it surely would have helped, you know, contain COVID in important respects. Yeah. And I mean, I almost, I don't want to belabor it, but there's a couple sentences after the ones that you just read, Leah, that I feel like are also kind of worth reading.

She accuses the court, she, I can't, it feels like I'm hearing Kagan, but it's the joint dissent. The dissent says today we are not wise. And then says really starkly, in the face of a still raging pandemic, the court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed as disease and death continue to mount, the court tells the agency it cannot respond in the most effective way possible without legal basis, as we have been saying. The court usurps a decision that rightfully belongs to others. Yeah, I mean, I think that without legal basis is a deliberate and very forceful choice. But I do think that lawless is the right way to describe the court here.

It is a lawless decision that throws around legal terminology and doctrine, but is fundamentally an exercise of raw power. And this is just like a difficult pill to swallow that this court has now disabled a really important COVID mitigation measure and hobbled the administration, I think, going forward in response to whatever the next wave or waves of COVID might look like and across a range of other policy areas that we've been talking about. Obviously, climate change. Way to keep it light and optimistic. Well, so before we go on to the CMS opinion, I just want to follow through with that, because I agree with you, this opinion is lawless. And I also agree with you,

it's an exercise of raw power. This is the court essentially showing its hand and materializing the risk we all warned about, which is you have this Republican controlled court that is essentially putting itself in a position to just veto whatever democratically enacted and large-D Democrat policies it doesn't like. And this has some real historical analogs that I just want to take through. And the question is, what's going to happen? So maybe let's talk about some of those historical analogs and then speculate, is the administration going to do something? are they going to change their posture to the supreme court so so can i answer in the form of a question you know that's allowed what is sector poultry and panama oil okay so that's one set of possible options um for those of you well that was a historical analog i thought you. Yes, yeah, yeah, yeah. I would just want to offer some other historical analogs. So the decisions

that Melissa noted were decisions by the Supreme Court that invalidated President Franklin Delano Roosevelt's signature New Deal policies that were designed to ease human suffering and get us out of the Great Depression. Also an existential crisis for the country. Exactly. And FDR turned around and proposed his famous court packing plan in order to allow him to have a court that would allow him to actually address the Great Depression. Big F around and find out energy from President Roosevelt. From FDR. Putting the F in FDR.

So that's one historical analog. But honestly, I wanted to flag two others. And they're also kind of in that same era. And that's Hammer versus Dagenhart and Lochner versus New York. You know, Hammer versus Dagenhart was a decision where the court attempted to limit Congress's power to only regulate those entities and activities that it viewed as inherently dangerous. And of course, that was just like a fool's errand. And it seems like the court is somewhat imposing that onto the OSHA regime. OSHA can only regulate those things that are inherently dangerous in the workplace. And that's a little weird. And then Lochner, I mean, in this decision, the OSHA case, the court has said, well, COVID is a risk that exists in most workplaces. It's not an occupational hazard. And Lochner is the infamous decision where the

court invalidated New York's minimum wage and maximum hour legislation on bakers on the ground that that wasn't a concern unique to bakers. And New York hadn't shown that this was actually a danger in the workplace. And meaningfully, both of those cases, I mean, the cases are both of a piece. You know, one obviously focuses on congressional power through the Commerce Clause, that's Hammer versus Dagenhart. The other focuses on state level police power, and that's Lochner. And both of them are ultimately overruled by the New Deal court, Hammer v. Dagenhart in Darby Lumber and Lochner in West Coast Hotel v. Parrish. But it's after the court, completely scared by the prospect of court packing, allegedly, where one justice, one Owen Roberts, which is his vote,

becomes the switch in time that saves nine and saves the New Deal. And so the question is— Well, that's an optimistic prediction of the trajectory that we're on. I will just note, there are two Justice Roberts in play, right? I mean, the difference, of course, is there were four horsemen, one, yeah, now we have five horsemen, a real difference. Also, I think, again, the F around and find out energy of Franklin Delano Roosevelt. I don't know that Joe Biden, big institutionalist, is really in that camp. Yeah. I mean, I think it's certainly the case that there's big Lockner Court energy in the Gorsuch concurrence. It's, I think, dialed back slightly in the per curiam opinion, but I think that the deeper question that you're posing is a court that is this far out of step

with majoritarian preferences, both in the federal legislature and in state legislatures, how long can that tension endure? And will the executive branch actually, you know, use its significant both rhetorical and actual powers vis-a-vis the court in any meaningful way? You know, we obviously haven't seen anything suggesting that it's going that the Biden administration is going to to this point. But but will this shift that dynamic? I just think people should be really horrified by what happened here. As we were saying, here, back there, coming up. A lot longer landscape. But this decision in particular, the reasons the court gave for invalidating this policy are just so utterly specious and absurd and gaslighting. And this decision will have severe consequences. And, you know, are we just going to be like, yeah, you know, this is

just how things are going to be for here until the end of the world? I mean, to be really clear, there are going to be a lot of workplaces who will privately without any requirement from a government or whatever, will undertake these kinds of protections to protect their workers. But again, that's not all workplaces. And it's those gaps that allow this to be perpetuated and to continue and we'll never get out of it, or at least it won't be as quick as we would like it to be. You know, that's sort of the question. I mean, I have been thinking about the marriage equality debate and just sort of how you had private enterprise sort of take the lead on some of these things. But then ultimately, the baton was picked up by the state, whether it was state level governments, and then eventually the federal government refusing to defend the Defense of Marriage Act. You see private entities taking up the baton here, but then you have a

court that it really is deeply, deeply skeptical of regulation, just saying like, no, like the government can't make you do anything. Like if you want to do that privately, fine. It just means that, you know, maybe workers need to take the initiative to press their workplaces to do these things independently of the government. And that's a harder road to hoe. And I think the horrifying thing is there are governments, some governments that are stopping workplaces from instituting those policies. And this court isn't going to do a darn thing about that. That is, they are allowing states to ban mask mandates

and ban vaccination requirements in private employers. And, you know, there is definitely a selective concern with government regulation. And it goes both ways. Like you must come to work and show up and do these things for productivity, but we can't mandate these things to secure your safety because it would cut into productivity, like cut into the bottom line. I mean, it's all terribly circular. And again, just to reiterate something we said earlier when we debriefed the oral argument, this case against the OSHA mandate was brought by the National Federation of Independent Businesses, the same group of small business owners, like small business interest group that brought you the challenge to the Affordable Care Act, the first challenge to the Affordable Care Act. So maybe to end on an optimistic note, we can turn briefly to the decision in the CMS case. And again, the court

is allowing the Center for Medicare and Medicaid Services to enforce its requirement that employees at federally funded health care facilities get vaccinated and not kill their patients. Woohoo! So the opening, or at least part of the reasoning of the decision, seemed to channel the formulation that Justice Kagan had of this case. So the majority in the CMS case basically invokes the Hippocratic Oath, saying the health care worker rule fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to

their patients is consistent with the fundamental principle of the medical profession. First, do no harm. And of course, at oral argument, Justice Kagan had said, well, look, all CMS is doing is telling employees at federally funded health care facilities, at a minimum, you can't kill your patients by transmitting COVID to them. And it seems like that articulation had some traction in getting both Chief Justice Roberts and Justice Kavanaugh to join the Democratic appointees and conclude that CMS had the authority to enact this rule. As that lineup suggests, the decision was 5-4 with Justices Thomas, Alito, Gorsuch, and Barrett dissenting. And I think that last piece, that Justice Barrett joined the dissenters is the most interesting and I think worrying one. The idea that Justice Barrett would be to the right of Justice Kavanaugh on issues of

administrative law is, you know, I think that is really going to pose some challenges for the administrative state going forward. And it, to my mind, suggests that the EPA's efforts to regulate climate change are definitely not going to be long for this world. Because if Justice Barrett is with Gorsuch, Thomas, and Alito on the CMS rule. Again, the rule basically telling employees at federally funded health care facilities you can't kill your workers. She is going to be inclined to do pretty aggressive things in other administrative law cases as well. It's not just abortion. She's got range. She's got range.

We should say on administrative law issues, she wasn't as much of a known quantity coming out to the court as Kavanaugh was. A lot of years in the D.C. Circuit and had written quite a bit Gorsuch as well. They had sort of staked out these positions and sort of identities. Peed in a circle around them, as it were. She had not. Right. And then she decided to take a, you know, take a lap around the fire hydrant here and be like, you know what? This one's on Leonard Leo's to do list. And that means it's on mine, too.

So talk to your girl. The damn thing. Exactly. I'm a girl. Right. Exactly. OK, well, that was sort of optimistic, I think. You know, healthcare workers have to be vaccinated. That's good. The spending clause seems intact. No one seems to be ready to take that on. Justice Gorsuch says, watch this space. Wasn't expecting Justice Barrett to show up for this project, but, you know, it has an unexpected year, and it's only 13 days in. So I just had one additional thought about the major questions doctrine that I need to put in this episode and find to have it as the closer. So I just realized the majority's per curiam opinion in the OSHA case has real Ron Burgundy kind of vibes. Like, this is kind of a big deal, right? Seems like to me, this is kind of a big deal. It smells of leather bound books and rich

mahogany. So pretty sure that's invalid. Like this is like Ron Burgundy, you know, enters the Supreme Court, won first street. Anyways, that's that's just my conception of this decision. Take that. You came in late, Leah, but you won the Zoom. That was amazing. Well, thank you all for joining us for this emergency episode of Strict Scrutiny. Again, we're sorry that we have so many emergency episodes. Don't blame us, blame the court. And we will continue keeping you up to date on all of this. Once again, we are grateful to all of our listeners who have supported us and continue to support us. We think you all are great.

Thank you. And thank you so much to the wonderful Catherine Fink, who substitute produced this episode on very short notice. We really appreciate it. We will talk to you all soon. So stay tuned.