Editor’s Note: Jeffrey Toobin is chief legal analyst for CNN and the author of “The Nine” and “The Oath.” The opinions expressed in this commentary are his own. View more opinion on CNN.
Irony is dead at the US Supreme Court. Unfortunately for the President (and for people who would rather not get Covid-19), it looked like a pair of Biden’s signature initiatives to fight the pandemic may be dead, too.
Two main lawyers – Ohio Solicitor General Benjamin Flowers and Louisiana Solicitor General Liz Murrill – argued Friday that the Biden administration’s vaccine mandate and testing requirements to prevent the spread of Covid-19 were overly broad, unnecessary and generally outrageous. Flowers and Murrill appeared before the justices remotely – because at least one of them tested positive for Covid-19 on a PCR test required to enter the court.
As always, it’s perilous to make predictions about the outcome of Supreme Court cases based on the justices’ comments at oral argument, but the six conservatives on the court Friday gave pretty clear hints that they are leaning against the administration.
The first case presented was a challenge to the Occupational Safety and Health Administration rule that says large employers must require workers to be vaccinated or to undergo frequent testing. Justice Samuel Alito’s main question gave a pretty good sense of how things went for the Biden team: he asked how quickly the court could rule in favor of the challengers. Parts of the Biden rule are supposed to go into effect next week, and Alito suggested that the court issue a brief stay to prevent that possibility from taking place.
The three liberals on the Court – Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan – seemed like they were arguing on a different planet from the one where their colleagues resided. On planet liberal, Covid-19 was still a major problem. People were still dying, and the Biden administration was trying to do something about it. As Kagan put it, her voice straining with incredulity, “We know the best way to prevent spread is for people to get vaccinated.” Breyer said he would find it “unbelievable that it would be in the public interest to stop these vaccinations.” He may have to believe it.
The conservatives, led most often by Justice Neil Gorsuch, came up with a number of arguments that said Biden went too far. Gorsuch said Congress had never authorized such action by the federal government; federal law was too vague to allow a mandate and testing rule; and the issue should be left to the states, not the federal government. Chief Justice John Roberts gave hints in each direction, but ultimately expressed more sympathy for Gorsuch’s view.
Biden’s lawyers seemed to have a slightly better chance in the second case. In that one, the federal government has decreed that certain health care facilities that receive federal money, including Medicare and Medicaid, must require their workers to get vaccines or testing. In most circumstances, the federal government is allowed to attach conditions when it spends funds; in other words, he who pays the piper calls the tune. Roberts seemed sympathetic to that view, especially since the health of medical workers is so directly tied to the well-being of their patients.
But there are five other conservatives on the court now – enough for a majority – and they seemed to indicate that the Biden administration had overstepped here, too. This is hardly surprising, since these two vaccine cases seem to be a part of a larger conservative project of reining in the power of the federal government (at least when a Democrat is in the White House.)
Several of the conservatives went out of their way to say that they were not against vaccines, but they were just against government mandates. (Justice Clarence Thomas, though, seemed more interested in government efforts to treat Covid-19, rather than prevent it, a view most often associated with Florida Gov. Ron DeSantis.)
Whatever the reasons that ultimately justify the rulings, the most likely outcome for the country seemed clear: fewer required vaccinations and testing, likely leading to greater sickness and even more death.
