Kagan is such a strong communicator on vaccine mandates.
"This is a pandemic in which nearly a million people have died ... This is the policy that is most geared to stop all this. ... So whatever 'necessary' means, whatever 'grave' means, why isn't this necessary and grave?"
A blunt line of questioning from Sotomayor: "We are now having deaths at an unprecedented amount ... Why shouldn't the federal government—which has already decided to give OSHA the power to regulate workplace safety—have a national rule that will protect workers?"
Kagan: "Who decides? Should it be the agency full of expert policymakers, politically accountable to the president? ... Or courts can decide. Courts are not politically accountable.... Courts have no epidemiological expertise. Why in the world would courts decide this question?"
Kagan, frustrated: "I would think that workplace risk is about the greatest, least controllable risk with respect to COVID that any person has. ... You have to be there ... and you have to be there with a bunch of people you don't know and who might be completely irresponsible."
(Remember: The Ohio Solicitor General is arguing remotely—in opposition to the workplace vaccine-or-test mandate—because he has COVID.)
Both Kavanaugh and Barrett have tossed truly ridiculous softballs to the attorneys challenging Biden's vaccinate-or-test mandate for employers. I think it's exceedingly likely that the Supreme Court will invalidate the mandate. Biggest question is whether it's 5–4 or 6–3.
I mean, just listen to Kavanaugh's absurd softball (it's barely even a question) to the Ohio Solicitor General (arguing remotely because he has COVID). It's pure backlash management.
Chief Justice Roberts just disapprovingly cited Ron Klain's retweet of a reporter who called the employer mandate a "workaround." I think this is pretty much over.
Here's the chief justice alluding to the Klain retweet: "It seems to me that the government is trying to work across the waterfront and is just going agency by agency. I mean, this has been referred to as a 'workaround' and I'm wondering what it is you're trying to work around."
More from Roberts: "It seems to me that the more and more mandates that pop up in different agencies, I wonder if it's not fair for us to look at [mandates] as a general exercise of power by the federal government and then ask the question: Why hasn't Congress had a say in this?"
The chief justice suggests that the OSH Act cannot authorize a vaccinate-or-test mandate because Congress wasn't thinking about COVID when it passed the law 50 years ago. I'd love to see him apply this reasoning to the Federal Arbitration Act!
After insisting that he's not questioning the safety of COVID vaccines, Alito questions the safety of COVID vaccines, citing their "adverse consequences."
"There is a risk. Has OSHA ever imposed any other safety regulation that imposes some extra risk on the employee?"
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The Supreme Court also sends NINE Chevron cases back down to the lower courts for reconsideration in light of Loper Bright. The disruption officially begins: supremecourt.gov/orders/courtor…
The Supreme Court vacates an 8th Circuit decision that had granted North Dakota lawmakers a "legislative privilege" from discovery in an important Native redistricting case, agreeing with the plaintiffs that the dispute has become moot. (KBJ dissents.) supremecourt.gov/orders/courtor…
🚨The Supreme Court rules that President Trump has "absolute immunity" from criminal prosecution for all "official acts" he took while in office. The vote is 6–3 with all three liberals dissenting. supremecourt.gov/opinions/23pdf…
Sotomayor, dissenting: Today's decision shields presidents from prosecution "for criminal and treasonous acts" and "makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law." supremecourt.gov/opinions/23pdf…
The Supreme Court's second decision is NetChoice. Justice Kagan's complicated opinion for the court remands both cases to the appeals courts for the proper analysis of a First Amendment facial challenge, which, she says, they flunked the first time. supremecourt.gov/opinions/23pdf…
HOWEVER: Kagan's opinion for the court holds that content moderation IS "expressively activity" and that social media platforms ARE protected by the First Amendment, no matter their size, from state intrusion. That's a major holding. supremecourt.gov/opinions/23pdf…
Kagan says social media platforms engage in protected speech when moderating content posted by third parties, and Texas' alleged interest in interfering with that practice amounts to the "suppression of free expression, and it is not valid" under the First Amendment.
The Supreme Court's first decision is Corner Post. By a 6–3 vote, the majority allows plaintiffs to challenge an agency action LONG after it has been finalized. All three liberals dissent. supremecourt.gov/opinions/23pdf…
This article explains why today's outcome in Corner Post will be so destabilizing to the administrative state—it means that agency actions are never really safe from legal assault, even decades after they're finalized. It's a really big deal. americanprogress.org/article/corner…
In her dissent, Justice Jackson urges Congress to enact a new law to "forestall the coming chaos" created by today's decision, reimposing the statute of limitations that had, until now, prevented new plaintiffs from endlessly challenging regulations. supremecourt.gov/opinions/23pdf…
🚨The Supreme Court overrules Chevron deference, wiping out 40 years of precedent that required federal courts to defer to expert opinions of federal agencies. All three liberals dissent. This is a HUGE decision. supremecourt.gov/opinions/23pdf…
The Supreme Court's reversal of Chevron constitutes a major transfer of power from the executive branch to the judiciary, stripping federal agencies of significant discretion to interpret and enforce ambiguous regulations. Hard to overstate the impact of this seismic shift.
Today's ruling is a massive blow to the "administrative state," the collection of federal agencies that enforce laws involving the environment, food and drug safety, workers' rights, education, civil liberties, energy policy—the list is nearly endless. supremecourt.gov/opinions/23pdf…
The Supreme Court's first decision is Grants Pass. By a 6–3 vote, the court holds that penalizing homeless people for sleeping outside when there is no available shelter does NOT violate the 8th Amendment. All three liberals dissent. supremecourt.gov/opinions/23pdf…
The Supreme Court's decision in Grants Pass wipes out significant precedent in the 9th Circuit that had protected homeless people from punishment when they slept outside due to lack of shelter. Per Gorsuch, the court holds that penalizing such people is not "cruel and unusual."
In dissent, Sotomayor says punishing people who sleep outside for lack of other options—through both civil penalties and jail time—is "unconscionable and unconstitutional," and faults the majority for spurning the "humanity and dignity of homeless people." supremecourt.gov/opinions/23pdf…