Thread by @LeahLitman

Argument starts in the OSHA case! The Chief says Justice Sotomayor is participating remotely as is Ohio SG Flowers (who tested positive for COVID-19, but the Chief doesn't say that).

Scott Keller -- former Texas SG -- starts (he is arguing for NFIB).

Justice Thomas asks how to determine whether a rule/requirement is necessary. And asks Keller to explain why necessary doesn't mean what McCulloch said necessary (in the Constitution) meant -- i.e., not actually necessary.

Justice Kagan interrupts: Whatever necessary means, why isn't this necessary to abate a grave risk.

THIS IS A PANDEMIC IN WHICH NEARLY A MILLION PEOPLE HAVE DIED AND THE GREATEST PUBLIC HEALTH DANGER THIS COUNTRY HAS FACED IN A CENTURY. NOT DRAMATIC, JUST FACTS!

shorter Justice Kagan: why isn't this necessary and grave you moron.

Keller: This is extraordinary power.

Kagan: No shit idiot, this is an extraordinary circumstance.

(she didn't say moron, or no shit idiot.)

Justice Kagan: This isn't a typical arbitrary and capricious situation. We all know what the best policy is you, fool. The best way to prevent spread is for people to get vaccinated! The second best is to wear masks. So we're going to do the policy that works best!

"Why isn't that necessary? What else was to be done? It's obviously the policy that's geared toward preventing death. The agency has done everything but stand on its head to show that this will prevent sickness and death."

Keller: States or private businesses could have this rule!

BUT THE POINT IS THEY DON'T WHICH IS WHY WE NEED OSHA TO DO IT.

Chief: How closely tied to the workplace does a danger have to be? (This is picking up on the challengers' argument that COVID is a danger not unique to the workplace.)

Justice Breyer: "you have good arguments in your brief. I'll assume they're both fairly good arguments" [laughs] "Are you still asking us to issue a stay?"

[Justice Breyer is still talking]

JUSTICE BREYER: can you really say its' in the public interest to stop this vaccination rule? because like almost a million people have died? how can it possibly be in the public interest?

Justice Breyer: I will repeat myself; to me it is UNBELIEVABLE. How can the balance of harms be in your favor?

[he finally got there]

Chief, Breyer, & kagan start talking. Chief moves to seriatim questioning.

[Chief appears to whisper 'sorry' to someone while Gorsuch is talking....]

Gorsuch asks Keller what major question doctrine means/his understanding of it. relevant because:

https://twitter.com/danieltdeacon/status/1479436012640165892?s=20

Chief Justice: I see you. I am also often sorry when Justice Gorsuch is talking pedantically about administrative law.

(this is just an aside from me to the chief justice.)

(it seems that the chief was apologizing to justice alito for going out of order.)

Justice Alito: should we focus on whether the rule is necessary to protect the public? necessary to protect all employees? necessary to protect unvaccinated employees who chose not to get vaccinated?

Chief Justice calls on Justice Sotomayor. There is silence/I can't hear anything -- don't know if others can.

Justice Sotomayor asked a question, and the lawyer can hear.

UGH NOW THE AUDIO WENT OUT ON THE LAWYER

can anyone hear anything? i just hear some throat clearing.

It seems that Justice Sotomayor is still questioning Keller, but I/we can only hear Keller.

WAIT NOW I CAN HEAR HER: "we are now having deaths at an unprecedented amount. and catching covid keeps people out of the workforce."

Justice Sotomayor: There are some states forbidding employees from requiring masks.

[This is a great point.]

Justice Sotomayor: the statute tasks OSHA with developing innovative measures and doing what is necessary in an emergency. Congress can't do it [you dolt].

Justice Sotomayor: What's the difference between this and requiring employers to require employees wear masks in a workplace when sparks fly?

Justice Kagan: I want to come back to the first part of your argument because you said the question is "who decides."

YES THAT'S THE QUESTION, AND IT HAS A DIFFERENT ANSWER THAN THE ONE YOU GIVE.

there are all kinds of tradeoffs. should it be the agency full of expert policymakers and politically accountable through POTUS? or on the other hand courts can decide -- not politically accountable, not elected, no epidemiological expertise. WHY IN THE WORLD WOULD COURTS DECIDE?

Kagan: well OSHA has a lot of expertise about workforces & dangers that workforces can confront employees with. OSHA talked to other agencies & brought that knowledge to bear as well. And again came out with a well supported policy & political accountability.

WHY WOULD COURTS DISPLACE THAT POLICY AND SAY IT IS UP TO US TO SET VACCINATION POLICY?

we will be playing this clip on repeat on @StrictScrutiny_ and may consider making it part of our intro.

Justice Kavanaugh: I'd like to follow up on Justice Kagan's question. [proceeds to mangle question by reciting major question doctrine about how it should be Congress & how it's difficult to decide what's major]

Justice Kavanaugh: Suppose it is major enough [Justice Kavanaugh is clearly going to say its major and invalidate the policy]. Gets back to this question:

https://twitter.com/danieltdeacon/status/1479436012640165892?s=20

a part of me feels like Justice Kavanaugh asks super basic moot court judge questions. "what does this test mean?" "what do these cases mean/stand for"?

Justice Barrett: So you're saying that even if some industries or some people would face a grave risk, you wouldn't be contesting that? The problem is it's scope?

[This is an attempt to make the Court's inevitable invalidation of the rule seem moderate. Don't be fooled.]

And here comes COVID-positive Ohio SG, arguing from the safety/comfort of his own home because having someone COVID-positive in the workplace is a grave danger, that OSHA can't regulate COVID in the workplace because it's not necessary to protect employees from grave danger

Justice Kagan: "Do you know of any workplaces that haven't fundamentally transformed themselves in the last two years? This idea that there are only a few select workplaces are affected .. EVERY WORKPLACE IS AFFECTED."

Justice Kagan: "Why is this a blunderbuss approach when every workplace has been affected except for a few here and there?"

Justice Kagan: "come on, the combination of a bunch of people going into an indoor space where they have to deal with each other. .. the combination of the environment and the people CREATE A RISK"

workplace risk is among the greatest, least controllable risk.

Justice Kagan: everything else you can control. you can't do that with work.

THANK YOU JUSTICE KAGAN, for recognizing this.

Justice Kagan came ready to fuck shit up this morning and you love to see it.

And Justice Breyer starts talking again. "My law clerks have been busy beavers on this case!"

I'm sorry did the Ohio SG just say he knows the importance of vaccines more than most bc he's vaccinated and got COVID????

Justice Sotomayor is not fucking amused by this.

The Court is not even done with the top side part of this argument and we're an hour in.

This is going to be a LONG day.

Justice Alito: The Q is whether there's a grave danger for unvaccinated workers period; employees who are fully vaccinated are not!

[He is going to try to use this as a gotchya to invalidate the rule. It is not the gotchya point he thinks it is -- the point is vaccines work!]

Justice Kagan: If I understand your answers, you've said "well 18-29 yo won't die, but they can spread." Then the question is "well. the agency itself said the danger is to other unvaccinated people -- older, immunocompromised" & you seem to be saying they assumed the risk?

Ohio SG says nonsense in response; Justice Kagan can barely disguise disdain in her "thank you."

Justice Gorsuch attempts to say this case isn't about whether courts or agencies should make policy but whether congress has given agency the power to make policy (****which courts are deciding on the basis of judicially invented fears about congressional delegations)

Justice Kavanaugh "I want to follow up on Justice Gorsuch's questions which are important and Justice Kagan's policy questions."

Honestly, I have so much respect for Justice Kagan not walking over and slapping him in the face.

SG Prelogar is up now!

Chief: What are some federal agencies where COVID isn't a grave danger in those contexts?

Chief: It seems like the USFG is just going agency by agency!

[it's a national emergency and a danger in many contexts, so of course agencies have authority to regulate it in many contexts]

Chief: It sounds like the sort of thing Congress & states should be responding to!

Justice breyer interjects, calling the Chief Justice's question a deep question. [talks]

"the merits, which might be difficult, I'm not taking a position on that" - Justice Breyer

Alito: how about we just issue an administrative stay to prevent OSHA from enforcing the testing and vaccination rule! are you going to say "they're causing millions of people to die?" WASN'T THERE GRAVE HARM BETWEEN EVERY DAY SINCE THIS RULE WAS ISSUE & TODAY?

This is very rich coming from the guy who refused to stay Texas SB8 while the Court determined whether the challenge to that OBVIOUSLY UNCONSTITUTIONAL LAW could proceed!

Chief: "It's true the federal government has never done this [mandating vaccines] before, shouldn't we take that into account?"

NO, AND HERE ARE OVER 30,000 WORDS FROM ME ON WHY. WE HAVEN'T FACED A PANDEMIC LIKE THIS BEFORE scholarship.law.duke.edu/cgi/viewconten…

Justice Alito also picking up on "but OSHA hasn't done something like this before!!"

Justice Alito is having a little meltdown and needs to take an emotional lap.

it is times like these when i wonder if men are too emotional to serve on the supreme court.

Now Justice Kagan comes back to this -- asking what major questions doctrine means

https://twitter.com/danieltdeacon/status/1479436942202871811?s=20

Justice Gorsuch: I have a question about major questions doctrine -- I ACCEPT IT'S NOT OUR ROLE TO DECIDE PUBLIC HEALTH QUESTIONS BUT WE GET TO DECIDE WHO DECIDES PUBLIC HEALTH QUESTIONS

Justice Gorsuch: Lets say there's an ambiguity; [he is obviously going to say there is an ambiguity even though there isn't one] why isn't this a major question?

Justice Gorsuch goes on his usual schoolhouse rock version of Congress, agencies, etc.

Justice Gorsuch: We have flu vaccines! OSHA hasn't regulated the flu before!