US Supreme Court Discussions

[N.E. Brigand]

Apparently the late Justice Ruth Bader Ginsburg said in a 2016 interview that Americans who kneel while the U.S. National Anthem is played demonstrate a "contempt for a government that has made it possible for their parents and grandparents to live a decent life ... which they probably could not have lived in the places they came from ... as they became older they realize that this was youthful folly."

But we're only learning this now because the reporter, Katie Couric, omitted that from the interview as published, although she did include Ginsburg saying that taking the knee was "dumb and disrespectful." Couric says she cut the rest to "protect" Justice Ginsburg, whom she believed "didn't fully understand the question." But Ginsburg's answer, agree with it or not, seems coherent and rational to me.

[Voronwë the Faithful]

Coherent and rational, and flat out wrong.

[N.E. Brigand]

It appears the Supreme Court may be planning to find that the Clean Air Act can't be used to regulate greenhouse gas emissions.

[RoseMorninStar]

[Voronwë the Faithful]

And you find that surprising? It is just another reason why the New Bill of Rights is necessary (see the Tenth).

Really the only thing surprising today is the court refused to block Maine's Covid vaccine mandate despite the fact that it doesn't have a religious exemption. That took me by surprised.

[Voronwë the Faithful]

I've listened to some of the oral arguments in the two cases regarding the Texas abortion law (the one brought by the coalition of abortion providers and the other brought by the Justice Department). My guess is that Justices Kavanaugh and Barrett will join Chief Justice Justice (and the three more liberal justices)in ruling that the law cannot stand (but that the Justice Department did not have the right to intervene) resulting in a 6-3 decision. That is not to say that the three of them will not ultimately vote to overturn Roe v. Wade in the Mississippi case that will come up later in the term.

[Voronwë the Faithful]

Another candidate for least-unexpected headline of the year.

Supreme Court seems poised to expand Second Amendment rights and strike down NY handgun law

[RoseMorninStar]

[Voronwë the Faithful]

Supreme Court signals further erosion of separation of church and state in schools

One odd aspect of the oral argument is that Justice Amy Coney Barrett referred to the Israeli-Palestinian conflict as the "Jewish-Palestinian conflict."

[N.E. Brigand]

Retired federal judge Nancy Gertner and Harvard law professor Laurence Tribe, both member of the Presidential Commission on the Supreme Court that was created by President Biden in April and whose final report is soon to appear, have jointly authored a Washington Post editorial:

The Supreme Court isn’t well. The only hope for a cure is more justices.

"We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly.

One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court."

[Voronwë the Faithful]

The court has agreed to review a case with potentially major implication for my own practice.

High court will review arbitration exemption under novel Calif. law

California's law, the Private Attorney General Act has given many of those workers a way around the FAA, allowing plaintiffs to keep some claims in court even when others are sent to arbitration. PAGA allows workers to sue for violations of wage laws on the state's behalf and keep 25% of any money they win.

The California Supreme Court in the 2014 case Iskanian v. CLS Transportation Los Angeles LLC said that because PAGA plaintiffs are representing the state, employers cannot require those claims to be arbitrated.

Worker advocates and other supporters of PAGA say the law is crucial to protecting workers' rights because state agencies only have the resources to pursue a fraction of cases in which employers engage in wage theft and other violations.

But business groups say PAGA has improperly interfered with parties' agreements to arbitrate, depriving workers and companies of the relative speed and low cost of arbitration.

The U.S. Chamber of Commerce in a June amicus brief urged the Supreme Court to take up Viking River's case, saying the number of PAGA lawsuits has skyrocketed since the Iskanian decision seven years ago.

The U.S. Supreme Court had denied several cert petitions filed by businesses on the PAGA question in recent years. But this year, the justices signaled their interest in the issue by calling for the plaintiffs in Viking River's case and five others to file response briefs.

I've handled several PAGA cases in the last couple of years, though none in cases that involved an arbitration agreement. My guess is that now that the court has taken up the issue it will reverse the Iskanian decision.

[N.E. Brigand]

There's a little controversy around something Justice Neil Gorsuch yesterday said in yesterday's Supreme Court arguments about the Biden administration's Covid vaccination mandates. According to the official transcript released by the Court, Gorsuch said that the flu kills "hundreds of thousands of people every year." Some journalists listening to the arguments as they happened also reported it that way. Gorsuch's claim as transcribed and reported would be wildly inaccurate if referring only to the U.S., where the flu kills between 10,000 and 60,000 people per year -- and it would make sense for Gorsuch to be referring to the U.S. in an argument about what OSHA can regulate. On the other hand, the flu does kill 300,000 or more people worldwide in a typical year, so if that's what he meant by "hundreds of thousands," he would be correct.

But if you listen to the the audio, it sounds to me like Gorsuch says the flu kills "hundreds, thousands of people every year." And in the context of what Gorsuch was arguing, I think that makes more sense. So the Court's official transcription may be in error.

However, none of this should distract from the point that the argument Gorsuch appeared to be pushing was wrong and was switfly dipatched by the government's attorney, Solicitor General Elizabeth Prelogar:

JUSTICE GORSUCH: I mean, people forget polio. That was a pretty bad, you can call it a pandemic, you can call it an endemic, I don't know what you would call it, but it was a terrible scourge on this country for many years.

We have vaccines against that -- that, but the federal government through OSHA, so far as I know, you can correct me, does not mandate every worker in the country to receive such a vaccine. We have flu vaccines. Flu kills, I believe, hundreds of thousands of people every year. OSHA has never purported to regulate on that basis.

What do we make of that when we're thinking about what qualifies as a major question and what doesn't?

GENERAL PRELOGAR: Well, with respect to other diseases where there are effective vaccinations, I think that the simple explanation for why OSHA hasn't had to regulate workplace exposure to that is because virtually all workers are already vaccinated.

JUSTICE GORSUCH: Is that true with the flu? Do we know that to be true with the flu?

GENERAL PRELOGAR: The flu is an exception because it's a seasonal illness. And there I think that the explanation for the failure to regulate is that it doesn't present
anything approximating the kind of hazard or danger to workers as COVID-19. I -- I don't want to suggest that with the --

JUSTICE GORSUCH: Are you suggesting that it doesn't pose a grave risk?

GENERAL PRELOGAR: I think that the agency would have to build the record to demonstrate that it would clear that statutory hurdle.

JUSTICE GORSUCH: But it might?

GENERAL PRELOGAR: It would depend on the evidence. Certainly if there were another1918 influenza outbreak like the country experienced before, yes, absolutely, I think OSHA could regulate exposure to influenza in the workplace. That's similar to what's happening -- happening with COVID-19 right now. With respect to many of those diseases, all of us have -- at one time or another have been subject to compulsory vaccination.

Gorsuch seems to believe that polio was more dangerous than Covid. Is that true? There were annual polio epidemics in the U.S. starting in the 1910s and lasting through the 1950s. According to the Wikipedia entry on polio, one of the worst epidemics happened in 1952, and of "the 57,628 cases reported that year, 3,145 died, and 21,269 were left with mild to disabling paralysis." That's horrible, of course. But also, even though the U.S. population then (156 million) was less than half what it is now (330 million), the number of deaths, or even of deaths plus paralysis, even as a proportion of the population (0.002% or 0.016%) is nowhere near as high as the number of deaths from covid-19 in the past 21 months, which is 835,000-858,000 (depending on the source), or 0.14% of the population annualized. In other words, the current U.S. outbreak is killing 800 times as many people (or killing/permanently debilitating 100 times as many people--I am completely setting aside the implications of "long covid," which are not yet fully understood). I daresay that fewer Americans died of polio ever than died of covid-19 in less than two years. And it's recently been estimated that the number of U.S. covid-19 deaths would be higher by about 1 million if not for the vaccinations whose workplace mandate Gorsuch appears to want to block.

Additionally, I would note in support of General Prelogar's point that by the time OSHA was founded in 1970, polio vaccines had been in widespread use 1955 (Salk) and 1962 (Sabin) and administered to more than 100 million Americans, and by 1980, all 50 states required vaccinations for many disesase including polio in order for children to attend public school.

[Voronwë the Faithful]

... and by 1980, all 50 states required vaccinations for many disesase including polio in order for children to attend public school.

Therein lies the rub. The main argument against the OSHA mandate is that it is up to the states to require vaccines. But Covid has become so politicized that many states are simply unwilling to step up. But the virus doesn't know borders. So it is up to the federal government to step in (except that they are going to lose on that one, though I think they will win on the companion health care mandate case).

[N.E. Brigand]

Listening again to the clip of Gorsuch's comment, I'm not so sure the official transcript misquotes him after all. It does rather sound like "hundreds of thousands," although the "of," if it's there, is very soft. There is some small vocalization between the two words. And the way he says "thousands" doesn't sound like a correction or addition to "hundreds."

Edit (Jan. 10): The official transcript now has been updated to read "hundreds, thousands."

[N.E. Brigand]

Elie Mystal, who writes about SCOTUS for The Nation, argues that Solicitor General Prelogar's response to Justice Gorscuch's comment indicates that she understood him to be saying that the number of flu deaths is in the hundreds of thousands. While I enjoy Mystal's punchy argument against those defending the "hundreds, thousands" interpretation of Gorsuch's remarks ("According to you guys, Prelogar was basically like 'not that many people get crushed by vending machines' and Gorsuch was like 'actually I do think the thread of people being crushed by vending machines is pretty grave. But OSHA doesn't regulate them... so no SEAT BELTS IN CARS'"), I'm not sure he's right. Prelogar seemed to just ignore Gorsuch's numbers on the flu. But Mystal is definitely right that the "correction" actually makes Gorsuch's argument worse:

If Gorsuch think the flu killing hundreds of thousands of people (which it doesn't) means we should ignore Covid (which does), he's wrong.

If Gorsuch thinks the full killing hundreds of people (which it doesn't) means we should ignore Covid (which has killed 800K), he's wrong.

To believe that Gorsuch said or meant to say "hundreds, thousands" instead of "hundreds of thousands" then you have to believe his argument was "The flu kills vastly fewer people than Covid, and we don't require flu shots, so we shouldn't require vaccines against the deadlier thing."

I also think Mystal makes a good point here, and the Court's conservatives are going to have tie themselves in knots to get around this:

"[T]he OSHA rule says 'vax, or get tested and masked, or work from home, or find a new job.' It is squarely within the government’s authority to set workplace safety regulations. OSHA can, and does, regulate the air quality in workplaces; it can certainly regulate how much coronavirus a person can spew on their coworkers."

But as far as I can tell, no one else has pointed out that Gorsuch was wrong about polio too:

Fewer Americans contracted polio in all of 1952, one of the worst outbreak years, than contracted covid-19 in any two hours over the past week.

And fewer Americans died of polio in all of 1952 than died of covid-19 in any two days over the past week.

Double those 2022 numbers to four hours and four days to account for the increased U.S. population since 1952.

[Voronwë the Faithful]

As expected, the Court rejected the OSHA vaccine mandate for large businesses (and also rejected the alternative request that the leave in place an alternate requirement for masking and frequent testing) but allowed the mandate for health care workers to go into effect.

Supreme Court blocks nationwide vaccine and testing mandate for large businesses, allows health care worker vaccine mandate to take effect

[N.E. Brigand]

Expected, but bloodthirsty.

[Voronwë the Faithful]

Wrongminded, I would agree with it, and I agree that the decision will cost lives, but bloodthirsty? That applies an intentional desire to cause physical harm, and I can't follow you there.

[N.E. Brigand]

Depraved indifference?

As you say: It will cost lives. They have to know that.

Edited to remove an intemperate comment.

[Voronwë the Faithful]

Either they know it, or they are willfully hiding the fact even from themselves. Certainly the should know it. Presumably they believe that the longterm harm to the nation that they believe allowing the Biden administration to exercise this type of authority would cause outweighs the harm that not allowing the mandate to go through will cause. I can't claim to understand that.