Unfortunately, the Supreme Court’s decision to prevent OSHA from enacting a mask mandate with a vaccination opt-out (it’s not a vaccination mandate) isn’t surprising. This is the sort of half-assed jurisprudence the radical Republicans on the Court regularly engage in, except this time the stakes are so noticeable and they are unable to cloak their mediocrity in legalese and other technical terms.
What is surprising, though perhaps given their political alignments it shouldn’t be, is their playing footsie with anti-vaccinationism (boldface mine):
…it makes sense that the justices would also express their opposition in federalist terms, arguing that the states can do what the federal government can’t. But the decision in the employer-mandate case, and the dissent from the four conservative justices in the health-care case, hinges on a new and alarming embrace of the right-wing culture war against vaccination, a deeply regrettable cost of conservative political strategy and political-identity formation.
…It was arguably inevitable that the justices would echo their cultural milieu—in which a COVID vaccine is like a mark of Cain that stains the soul forever—in their decision.
The conservative wing of the Court wants to have it both ways: insisting they are not questioning the safety or efficacy of vaccination, while issuing decisions that are entirely premised on the right’s newfound and quasi-religious conception of them as traumatic and metaphysically significant—a necessity for the mandates to be seen as oppressive. This is little more than culture war dressed up in the language of constitutionalism.
This shift was evident during the oral argument, when the justices who signed on to Gorsuch’s concurrence raised soft anti-vaccination talking points. Although technically the argument was about whether to stay the mandates while the legal challenges against them proceed, the arguments were focused on whether the mandates themselves were lawful. When it came to the employer mandate, the Republican-appointed justices were profoundly skeptical. And not just skeptical of federal power to regulate business, but skeptical of the vaccines themselves, even when they were strenuously claiming not to be.
Thomas questioned whether “vaccinations are efficacious in preventing some degree of infection to others,” and asked, “Is a vaccine the only way to treat COVID?” Although the Omicron variant has shown itself able to break through vaccination, it is not the only variant in circulation, and the vaccines remain effective against all variants in preventing many deaths and hospitalizations.
Gorsuch compared COVID to the flu, and asked why OSHA had not mandated flu vaccines, even though the flu is nowhere near as lethal as COVID.
Alito prefaced a question suggesting that the vaccines were unsafe by insisting that he was not suggesting the vaccines were unsafe. “I don’t want to be misunderstood in making this point, because I’m not saying the vaccines are unsafe,” Alito said to Solicitor General Elizabeth Prelogar. “Has OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk, on the employee, so that if you have to wear a hard hat on the job, wearing a hard hat has some adverse health consequences? Can you think of anything else that’s like this?”
…The justices’ reasoning follows the path set by the rest of their political coalition. Their academic pedigrees and social status do not insulate them from adjusting their views to fit those of the community they have chosen.
Their willingness to dismantle federal regulatory authority is par for the course–that is what they do. But the embrace of anti-vaccination sentiment, even as they are unwilling or unable to clear state what is objectionable, is galling. It is willful ignorance, and a final stain on the court.
And every Very Serious Lawyer who argued that Kavanaugh, Barrett, Gorsuch would be competent jurists needs to go fuck themselves while we’re at it.