Fully vaccinated and mostly masked, the Supreme Court's conservative majority appeared skeptical Friday of the Biden administration's authority to impose a vaccine-or-testing requirement on large employers. The court seemed more open to a separate vaccine mandate for most health care workers, the AP reports. The arguments in the two cases come at a time of spiking coronavirus cases because of the omicron variant, and the decision Friday by seven justices to wear masks for the first time while hearing arguments reflected the new phase of the pandemic. Justice Neil Gorsuch was the only one to remain unmasked throughout the 3½-hour hearing.
Sonia Sotomayor, a diabetic since childhood, chose to remain in her office at the court and take part remotely. Two lawyers, representing Ohio and Louisiana, argued by telephone after recent positive COVID-19 tests, state officials said. But the COVID circumstances did not appear to outweigh the views of the court's six conservatives that the administration overstepped its authority in its vaccine-or-testing requirement for businesses with at least 100 employees. "This is something the federal government has never done before,” Chief Justice John Roberts said, casting doubt on the administration's argument that the Occupational Safety and Health Act confers such broad authority.
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The three liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown "quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will." And Justice Stephen Breyer said he found it "unbelievable” that it could be in the “public interest” to put that rule on hold. Roberts and Justices Brett Kavanaugh and Amy Coney Barrett seemed to have fewer doubts about the health care vaccine mandate. Kavanaugh said it was a "very unusual situation" that hospitals and health care organizations affected by the regulation were "not here complaining" about the rule but instead support it. That mandate would apply to virtually all health care staff in the country.
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