☕️ Coffee & Covid ☙ Friday, January 14, 2022 ☙ DOUBLE DECISIONS 🦠

We begin to figure out the Supreme Court’s double decisions from yesterday.

It’s an auspicious Friday here at C&C, as we begin to figure out the Supreme Court’s double decisions from yesterday.

🗞 *THE C&C ARMY POST* 🗞

🥷 I’m in jail, again. Something about yesterday’s post triggered the censors on that OTHER PLATFORM — I have no idea what — and now my account is under lockdown for three days. I feel like an Australian who just tested positive at CVS.

My poor followers on that OTHER PLATFORM are probably frantic. We could overcome the lockdown-happy censors by directing folks back over here, social media’s version of Florida. Please feel free to share a link to this post on that other platform.

👩‍⚕️ Update on Dan Pisano’s case. The Hospital filed its brief yesterday by its 10am deadline. That gave us till 3pm today to draft and file our Reply, at which time the case will be fully briefed. I’ve been buried in drafting, which is why I didn’t notice the two Big Decisions come down until my email and texts began blowing up yesterday.

Since I’m still working furiously to save Dan’s life, I’m going to keep today’s post focused just on the decisions, since I know everyone wants to hear about my first impressions. I have thoughts.

🗞*COVID NEWS AND COMMENTARY* 🗞

👨‍⚖️ As I said, I was deep in furious drafting and researching when two strands of messages started coming in from all my contacts over email and in my texts. The OSHA group’s messages were ecstatic; a steady stream of high-fives and champagne emoji’s. The CMS folks were streaming an electronic river of tiny mad faces and that little emoji where the top of the guy’s head is going up in a mushroom cloud.

(I can’t believe I just used the word “emoji” in a serious sentence. Anyway.)

I will have more to say about the two decisions in coming days, as I have more time to unpack them and calculate the effects. Today you get my “hot takes.”

A LITTLE DISCLAIMER

Lawyers are referred to as “officers of the court.” We are often described as “part of the court system.” This sometimes translates into advantages like getting to enter the courthouse through the court’s private door, with no lines and simplified security. Some courts — a few — even let lawyers carry their concealed weapons in. Some judges don’t require lawyers to be sworn to testify, since we already have ethical duties of candor as officers of the court.

The ethical rules for lawyers prohibit us from criticizing specific judges and the legal SYSTEM generally. That doesn’t mean we CAN’T criticize them, but we are required to be professional and circumspect about it. The rule, exquisitely frustrating at times, does make sense. It’s kind of like the rule that an employee shouldn’t criticize their own company or their managers. Quit, then you can say whatever you want, otherwise keep your mouth shut.

Obviously, lawyers often dissect Supreme Court opinions and note silly things that Justices say. I can do that. I’m just letting you know, ethical lawyers aren’t supposed to tear them a new one or anything.

A LITTLE HISTORY

In the early part of the 1900’s, FDR — who never saw a socialist he didn’t love — tried to implement lots of federal control over the economy, which he called the “New Deal,” and the Supreme Court didn’t like it much. For example, FDR tried to pass a national minimum wage, and the Court struck it down as unconstitutional. A personal conflict between FDR and the Chief Judge spilled over into the nation’s headlines.

In 1936, Roosevelt was re-elected in a landslide. Shortly after, he announced a plan to increase the number of Supreme Court Justices from 9 to 13, which would give him five immediate appointments and allow him to “pack” the Court with friendly judges. His public explanation was that the Court just had too few Justices and couldn’t hear enough cases. So FDR sent a bill to Congress, which was held up in the Democrat-controlled Senate.

But in the meantime, the Justices got the message, loud and clear, and started finding new things to like about the New Deal and FDR’s socialist laws to be Constitutional. That sordid saga is now required history in law schools these days. It’s described as an extreme way that the executive branch can get control over the Supreme Court.

A LITTLE CURRENT EVENTS

Biden knew he would be taking office facing a conservative Court with three Trump-appointed Justices. Even during the elections in 2020, liberal pundits waxed eloquent on all the good reasons that a bigger Supreme Court would be a great benefit to the entire country.

On April 9, 2021 — four months after taking control — Joe Biden signed an executive order creating the Presidential Commission on the Supreme Court of the United States. The Commission’s purpose was to consider and recommend “improvements” to the Supreme Court including “the membership and size of the Court.”

During the next few months, I noticed and commented about a remarkable series of 9-0 opinions coming from the Court. What I said at the time — and still believe — is that the Supreme Court was sending the Biden Administration some kind of message. Something like, “you can add five justices but it won’t change anything because we’re going to vote together.”

But there was also a silk glove along with the iron fist of voting uniformity. During the same period, the Court turned down review of ALL the cases related to Biden’s signature “accomplishment”: high vaccine rates. Arguably, Biden has utterly failed in every single other area of governance: foreign policy, managing (or MIS-managing) Afghanistan, the economy, his poll numbers, and losing Democrat seats in state and local elections. The ONLY thing that was going his way was his vaccine plan — through brute force.

Which is why, if Biden can’t announce that he shut down the virus on March 1, he doesn’t really have a lot of good news to talk about. None, if you think about it. And, as I’ve explained earlier, I believe that’s why Narrative 2.0 — all-of-a-sudden — is that the pandemic is over. But that’s a separate issue.

On December 7 — a month ago — the Presidential Commission sent Biden its final report — which did NOT recommend packing or otherwise increasing the size of the Supreme Court. Leftwing media expressed outrage, and reported lots of Democrats, including lawmakers and influencers, frantically calling on Biden to pack the court anyway. In Twitter’s fever-swamps, this debate rages on, right now.

So the timing of the Court’s review of the two mandates could not possibly have been at a worse time for the Court, politically speaking. Note that I am NOT accusing the Supreme Court justices of being influenced by politics rather than reason in their decisions yesterday. I’m just noting some interesting and possibly-related historical and current political trends. I’m just saying.

A LITTLE BABY SPLITTING

My initial reaction to the two decisions is to note a bunch of curious elements. I haven’t put it all together yet, but let’s just take a gander at a few things that stand out as we try to wrap our lockdown-fatigued brains around what — superficially, at least — looks at first blush like a very schizophrenic pair of decisions.

Judges love “baby splitting.” The term refers to that old story about King Solomon where he suggested the solution of cutting a live baby in two to find out who the real mother was. But that’s not what it means in present vernacular. It just means that judges like to give both parties something, to divide the decision somehow, so that nobody’s completely happy but — more importantly — nobody’s completely left high-and-dry and outraged at the judge.

It seems to me that, it must have been very tempting to shoot for a baby-splitting solution at a time when the Court’s composition rests precariously on top of a giant pile of political tinder, with social and emotional court-packing gasoline soaked all through it, deciding the issue that could shatter the microscopic Biden legacy at a time when he and the Democrats control all the levers of power in Washington. Regular readers may recall that, after hearing oral arguments, I predicted the exact result that we saw: the OSHA Mandate was stayed, and the CMS Mandate was green-lighted.

Having two cases gave the Supreme Court a political opportunity to split the baby.

So, even if it wasn’t their express objective, the dual decisions did split the baby and did defuse a court-packing atom bomb. In other words, if both mandates had remained stayed, and not just one, then liberal demands for a packed court would have spiked higher than Omicron cases in New York.

A LITTLE COINCIDENTAL TIMING

It is interesting that both decisions issued simultaneously. If you think about it, apart from the fact that the two cases were both about vaccine mandates, they were two different lawsuits, two completely different sets of statutes, with two different sets of issues, and — most important — two different configurations of Justices.

There is no question that the Court must have held up one of the decisions, the one that was finished first, until the other decision was also done, before releasing them both together.

Why? Why not issue the first decision as soon as it was ready, then later issue the second decision when that one was done? It could have helped SOMEBODY. The fact is, I do not know the reason. Only the Supreme Court knows why. But it was extremely POLITICALLY convenient for them both to issue together. Had the OSHA decision come out first, the media would have gone crazy calling for court packing. Had the CMS decision issued first, a massive tsunami of conservative dissatisfaction would have begun to form somewhere off the Atlantic coast.

Issuing the two decisions together stopped both sides from developing momentum. Coincidentally.

A LITTLE ODD AUTHORSHIP

The majority opinions of Supreme Court decisions can be written several ways. The most common one is where the deciding Justices sign the opinion, and you can tell who wrote it and who joined it, fully, partially, etc. For example, in Janus v. AFSCME (another prominent case from 2018), the majority opinion was signed like this:

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

But both of the decisions issued yesterday were signed in a much less common way: “PER CURIAM.”

Wikipedia defines the term: “In law, a per curiam decision is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively.” It notes “the decisions of the U.S. Supreme Court are usually NOT per curiam … Per curiam decisions tend to be short. In modern practice, they are most commonly used in summary decisions that the Court resolves without full argument and briefing.”

So the OSHA and CMS decisions don’t match the normal characteristics of a per curiam decision, which itself is a rare form. So these decisions are a super-rare type.

The term basically means, “for the whole court.” One consequence is that you can’t tell who authored the decision. Nobody takes the credit or the blame. I’m not saying it proves the Court had political concerns about the decisions, but it is suggestive.

A LITTLE ODD LANGUAGE SELECTION

You aren’t going to see a lot of quotes from either main opinion. The Court didn’t wax eloquent in either the OSHA or the CMS case. It’s not that the decisions were ineloquent. They were neutrally-toned, workmanlike, boring. They focused, by and large, on very technical issues of statutes and doctrines. There were no high principles expressed. No new law was made. I would be surprised if either case is ever cited by any other case except maybe for technical issues like the bare existence of the “major questions doctrine.“

The dissenting opinions in both were slightly more passionate, but even in those, one can’t help but feel a little disappointed. They were predictable, merely tracking comments already made by the Justices at oral argument. Nothing new. No strong condemnations. And — in particular — they didn’t point out the huge weaknesses in the reasoning, especially of the CMS case.

There were notable facts missing. Neither the OSHA opinion nor the CMS opinion cited the number of deaths from Covid, for example. You’d think that at least the CMS opinion would have mentioned it. Neither opinion — and this is really remarkable — discussed the efficacy or lack of efficacy of the vaccines, except only to attribute conclusions to the Secretary or the lawyers. The Court usually FINDS things, not quotes the parties or their lawyers.

If I had to choose one word to describe the language and tone of both opinions, it would be, “restrained.” It is almost like the decisions were written in order to offend the fewest number of folks.

A LITTLE MISSING AUTHORITY

Since I’ve been litigating in this space for almost a year now, I was looking to see how the Court handled one case in particular — and I was shocked when I didn’t find it. I tried searching the PDFs — nothing. I tried a different PDF viewer thinking that there might be a problem with my default one. Nope. I tried searching for a bunch of other stuff just to make sure search was working. Zip.

The Jacobson case has gone missing.

Jacobson v. Massachusetts — the only Supreme Court case that has previously discussed vaccine mandates, the case that has been cited, at length, in almost every single lower-court decision, has apparently vanished from the Earth.

It’s vanished from the Supreme Court, anyway. Neither of the two opinions mentions Jacobson — EVEN IN DISSENT. Not even in a footnote.

Why is this important? Because Jacobson held that the authority to coerce people to take vaccines comes from STATE POLICE POWERS. From the States. It’s a problem for both mandates. But it wasn’t used to deny the OSHA Mandate, and it wasn’t distinguished or overridden to support the CMS Mandate.

Where, oh where, has my Jacobson gone? Where, oh where, could it be?

I suppose this is a stealth way to override precedent by just ignoring it. Not a good look.

A LITTLE “I TOLD YOU SO”

Regular readers will recall that when I predicted that the Court would uphold the CMS Mandate, it would rely on the fact that hospitals have already been requiring healthcare workers to take influenza vaccines. Well, this is what the Court said in its CMS opinion:

Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella. As the Secretary explained, these pre-existing state requirements are a major reason the agency has not previously adopted vaccine mandates as a condition of participation.

See? This is the slippery slope in action. We should have pushed back against vaccine mandates in hospitals ten years ago.

I know, I know! Don’t swamp the comments explaining how different the Covid injections are from all those other ‘real’ vaccines. I get it. I do. And I totally disagree with the Court’s reasoning in the CMS case, not least because it didn’t follow or even try to deal with the Jacobson precedent.

A LITTLE WHAT’S NEXT

So what do we do now? My Disney and Florida Power & Light clients are super happy, understandably. All my healthcare clients are freaking out, understandably.

The first thing we have to do is see how the Biden Administration will react. This isn’t terrific timing for them. If they were smart, they’d put a hold on the CMS Mandate themselves, for two reasons. First, the Narrative 2.0 project kicked off AFTER these cases were at the Supreme Court. The mandate, and all its fallout, isn’t exactly consistent with the new narrative. So there’s that.

But second, all we hear about now are the “critical staffing shortages” in hospitals. This decision is going to spray kerosene on the staffing bonfire. CMS will have to do something; as it stands, uninjected employees are already too late, past the original deadline. They are due to be fired immediately. That’s a lot of nurses and doctors. Can they possibly do that during an Omicron surge, with hospitalizations still leaping forward and facilities already underwater?

Are they going to send military doctors to every hospital in the country? Are there even that many military doctors?

CMS paused its own mandate on December 1, after the Missouri decision. It will have to un-pause the mandate now. And probably, at least, revise the deadlines. What will it do? We wait to see.

After that, we will need some good, practical strategies for our fellow citizens who are in healthcare jobs and are under the mandate’s hanging Sword of Damocles. We’ll be working on that. Stay tuned.

Those are just my initial thoughts about all this. More to come.

Have a fantastic Friday and I’ll be back here tomorrow morning with more.

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