Mark Joseph Stern Profile picture
Jan 7, 2022 12 tweets 4 min read Read on X
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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More from @mjs_DC

Oct 31
The seamless expansion of same-day registration to so many states proves that there is no legitimate reason to cut off voter registration before Election Day, let alone a full month before. Registration deadlines are just a pretext to prevent less engaged citizens from voting.
In many states, you can walk up to the polls on Election Day, register to vote, and cast your ballot. In other states, you have to register up to a full month before Election Day. The only difference is that the first group of states wants people to vote and the second does not.
Same-day registration also protects voters against administrative errors and unlawful purges that cancel their active status shortly before an election. In Virginia, for instance, citizens wrongfully purged by Youngkin can re-register at the polls through Election Day.
Read 4 tweets
Oct 25
NEW: A far-right panel of the 5th Circuit rules that it is *illegal* for states to count ballots that arrive shortly after Election Day but are postmarked by Election Day.

18 states + D.C. count these ballots. This decision would shred those laws. s3.documentcloud.org/documents/2525…
BUT: The 5th Circuit decision only applies to Mississippi, the one state within the circuit that counts ballots received after Election Day.

The 5th Circuit is trying to tee up a Supreme Court decision to strike down ballot laws in many other states, too. s3.documentcloud.org/documents/2525…
The 5th Circuit declined to issue a preliminary injunction against Mississippi's law, but declared it illegal and ordered the district court to issue an appropriate remedy. Nobody knows what that will look like! Confusion will now reign. s3.documentcloud.org/documents/2525…
Read 4 tweets
Jul 2
NEW: The Supreme Court sends a whopping EIGHT Second Amendment cases back to the lower courts for reconsideration in light of its decision in Rahimi.

Much more in today's giant orders list: supremecourt.gov/orders/courtor…
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…
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Read 12 tweets
Jul 1
🚨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…
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Sotomayor, joined by Kagan and Jackson, closes: "With fear for our democracy, I dissent." supremecourt.gov/opinions/23pdf…
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Read 6 tweets
Jul 1
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.
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Read 4 tweets
Jul 1
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…
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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…
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Read 7 tweets

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