The conservative six-member majority of the Supreme Court blocked President Joe Biden’s vaccination-or-testing requirement for employees at large businesses Thursday after it concluded that the Occupational Safety and Health Administration, or OSHA, stepped out of its lane when it implemented the mandate. But a bare five-member majority of the court upheld Biden’s vaccination requirement for health care workers at facilities that treat Medicare or Medicaid patients. In the first case, the three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — dissented. In the second case, Chief Justice John Roberts and Justice Brett Kavanaugh joined them.
The Supreme Court’s decision to prize a narrow reading of the authority of executive agencies over our health will have profound practical, political and legal effects.
The split decision doesn’t change the bad news. The Supreme Court’s decision to prize a narrow reading of the authority of executive agencies over our health will have profound practical, political and legal effects.
When it comes to the vaccinate-or-test requirement for large employers — which, according to OSHA’s estimates, would have applied to more than 80 million workers and saved 6,500 lives in six months — the court expressed a number of concerns. It said OSHA, an executive agency, went beyond its congressionally provided authority by implementing the mandate. Complaining that OSHA had exceeded its authority by choosing to impose the vaccinate-or-test requirement on workers just because of the size of the companies they work for and not because of the risks their jobs entail, the majority suggested that the administration used a sledgehammer when it should have used a scalpel.
While the pandemic continues to rage, health care systems are on the brink of collapse and many hospitals are at capacity, six justices, none of whom has a background in medicine or science, concluded that the threat posed by Covid-19 is a “hazard of daily life” that presents risks no different from daily dangers such as “crime, air pollution, or any number of communicable diseases.”
Breyer, the senior liberal justice on the court, was having none of the majority’s downplaying of the dangers of going to work during the pandemic. “In the face of a still-raging pandemic, this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” Breyer correctly noted.
Could the conservative majority of the court be more amenable to a more targeted vaccination mandate? Maybe. Biden could opt for a second turn at bat and craft a narrower mandate that would affect employees in high-risk workplaces, but in making such a decision, he would be likely to consider not just the status of the pandemic, which has killed more than 5.5 million people worldwide, but also the approach of midterm elections. It seems unlikely that his administration will want to spend its limited political capital on a revised mandate as it fights to pass meaningful voting rights legislation and social safety net reforms. As for the mandate from the Centers for Medicare and Medicaid Services requiring health care workers to be vaccinated, the court concluded that the federal government’s power is different and more established here, that health care workers are routinely subject to vaccination requirements and that there is a countervailing need to make sure health care workers do not transmit the coronavirus to their patients. This requirement will apply to about 17 million workers. However, it remains bad news that we have a conservative majority comfortable with second-guessing OSHA’s determinations and supplanting those determinations with its own views. There is little reason to think the decision signals anything other than hostility to the power of federal agencies to make decisions to promote public health. It is now up to states, localities and private businesses to use the tools that we know keep us safe from the pandemic: vaccination mandates and tests. The court’s decision to grant emergency relief to block OSHA’s actions very directly puts us at risk. From behind the most powerful judicial bench in the world, where audience capacity for oral arguments has been greatly limited and people in the building are required to be regularly tested, perhaps the pandemic doesn’t seem that dangerous. But those workplace protections aren’t typical for most people, who don’t have the power that justices have to make their workplaces as safe as possible but may be expected to report to jobs where they’re made vulnerable to being infected with a virus that has already killed more than 840,000 people in the U.S.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
