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?"
"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?"
"There is a risk. Has OSHA ever imposed any other safety regulation that imposes some extra risk on the employee?"
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