Justice Thomas and Justice Alito also reportedly took off their masks after they entered the courtroom on Friday, as we discussed on the @StrictScrutiny_ episode about arguments in the test/vax cases. strictscrutinypodcast.com/podcast/no-law…
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.
SCOTUS has a rule that lawyers must take a covid test before arguing ... much like the testing rule that OSHA is trying to impose on other workplaces, & that the Court may very well invalidate!
update: the answer is yes. one of the lawyers challenging the federal government's attempt to regulate the spread of COVID-19 (by testing and/or vaccinating) contracted COVID-19....
"that no factfinder could have found the prisoner guilty is NOT ENOUGH," Arizona lawyer says, emphasizing that yes, indeed, their position can result in the execution of innocent people.
Thomas: 'Martinez procedural default exception would be worthless if litigants could not introduce evidence to support their claim that trial counsel was ineffective.' Please explain?