Supreme Court justices seemed divided during an oral argument hearing on Friday as plaintiffs challenged President Joe Biden’s vaccine-or-test mandate, just days before it is slated to take effect for workplaces with 100 or more employees.
The first attorney to speak Friday was Scott Keller, representing the National Federation of Independent Business that is challenging the mandate enforced by the Occupational Safety and Health Administration. Keller asked the justices to stay the agency’s Emergency Temporary Standard before Monday “immediately.”
Justice Clarence Thomas opened by asking: “How are we to decide when an emergency temporary standard or emergency temporary standards are necessary?”
The liberal-minded justices primarily questioned the legitimacy of arguments against the mandate, citing that the COVID-19 pandemic continues to affect hospital capacities. They also noted the inherent ease of spread of COVID-19 among peers. Meanwhile, the majority of conservative-leaning justices raised more skepticism about OSHA’s ability to issue a nationwide vaccine-or-test mandate.
Toward the end of oral arguments, Justice Samuel Alito floated the idea of an administrative stay ahead of the Jan. 10 implementation date, which requires unvaccinated employees to wear masks in the workplace.
Keller cited a statement from the U.S. Postal Service Deputy Postmaster General Douglas Tulino, who requested the Labor Department waive the mandate temporarily, arguing it “is likely to result in the loss of many employees — either by employees leaving or being disciplined.”
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Justice Elena Kagan questioned Keller on why vaccines shouldn’t be mandated in workplace settings.
“Why isn’t this necessary to evade a grave risk?” Kagan asked, adding the pandemic has caused mass numbers of people to become sick and others to die.
“This is going to cause a massive economic shift in the country, billions and billions of nonrecoverable costs,” Keller said in response.
Justice Sonia Sotomayor asked Keller to differentiate the vaccine-or-test rule from OSHA’s authority to regulate workplaces that deal with machinery emitting harmful sparks.
When it comes to OSHA’s authority, “why is a human being not like a machine if it’s spewing bloodborne viruses?” Sotomayor asked.
U.S. Solicitor General Elizabeth Prelogar later argued in favor of the OSHA mandate. She said the present estimate is that the order would save 6,500 lives and prevent 250,000 hospitalizations over the next six months.
The United States is averaging roughly 602,547 new COVID-19 cases and 1,256 new deaths each day, according to Johns Hopkins University. At one point, Justice Stephen Breyer incorrectly stated there were “750 million new cases yesterday,” but previously noted a more concurrent estimate of 750,000 U.S. cases reported.
Prelogar conceded that if the highest court needed more time to weigh the cases, the first phase of the measure’s implementation on Monday would only require unvaccinated workers to wear masks. The vaccine-or-test policies are set to begin Feb. 8.
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Alex Deise, a policy manager at FreedomWorks, told the Washington Examiner that some of the Republican-appointed justices focused on whether OSHA’s statutory authority was broad enough to implement its mandate across every industry in the United States.
“Chief Justice Roberts and Justice Barrett both asked very specific questions on the issue over whether OSHA should have applied an industry-by-industry standard in crafting the mandate rather than a top-down, one-size-fits-all policy for every employer with 100 or more employees,” said Deise.
