☕️ Coffee & Covid ☙ Saturday, January 8, 2022 ☙ ORAL ARGUMENTS 🦠

In which I summarize the Supreme Court's oral argument hearing in lay terms, and offer my predictions (for what they're worth).

Happy Saturday, C&C! I bet you think I’m going to talk all about the Supreme Court oral arguments yesterday, but I’m not. That story has been over-covered anyway. Who cares?

Haha, just kidding! I’ll briefly explain everything non-lawyers need to know about the arguments and give you my prognostications (for what they’re worth). All you need to know in one (kind of) short post.

👨‍⚖️👩‍⚖️ *THE SUPREME COURT ORAL ARGUMENTS* 👨‍⚖️👩‍⚖️

PROLOGUE: In case you haven’t been paying attention, yesterday morning the Supreme Court heard oral arguments from attorneys of various states and parties on one side, and attorneys for the government on the other. Given how it went, I’ll bet the already-lively C&C comment sections on Facebook and on Substack were SUPER-lively yesterday afternoon.

For law nerds, here is a transcript of the two hearings: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21a244_kifl.pdf.

First, the basics. The Court heard argument in two related cases yesterday: NFIB/Ohio v. Dept. of Labor, regarding the OSHA mandate, and Biden v. Missouri, regarding the CMS mandate. The attorneys arguing for the government included Elizabeth Prelogar, the US Solicitor General, and Brian Fletcher — plus Justices Breyer, Sotomayor, and Kagan, who also argued for the government. So, five lawyers total.

The attorneys for all the anti-mandate parties, which I’ll call “The States,” included Scott Keller, former Texas solicitor general, Ohio Solicitor General Ben Flowers, who was triple-vaccinated but phoning it in because he tested positive, and Louisiana’s Solicitor General Elizabeth Murrill.

If it wasn’t obvious to you yet that the pandemic has been completely politicized, it should be now. I don’t have an exact count of the minutes, but it sure seems like the three liberal judges — Breyer, Sotomayor, and Kagan — did most of the talking during almost two and a half hours of argument yesterday on a partially live, partially telephone hearing.

Listening in, non-lawyers must have been extremely frustrated and aggravated by how the arguments went. But don’t panic! It doesn’t mean what you think it means.

What probably frustrated a lot of folks was that during the arguments, the three liberal justices gassed on at length, reciting stale Covid-19 talking points from June 2020 and making sweeping pronouncements that amounted to liberty yielding to emergency — an “emergency” that is now two years old and counting. Even I was frustrated at time. If I heard one more time about how many people have died, I would have thrown up like a five-year old after chugging his fourth Chocolate YooHoo.

Law and policy aren’t about how many people have DIED (however debatable that number might be). It’s about how many WILL die. In the future. The past mortality figures are totally irrelevant to future policy unless (a) we’re debating building a memorial, or (b) if the past death figures can predict future deaths — which in this case they cannot.

It must also have been extremely vexing for those of you who listened in NOT to have heard mention of a lot of critical information that is VERY significant, like, um, the lack of severity of OMICRON? Or not hearing any of the States’ lawyers pushing back on the ill-informed liberal Justices’ factual claims. Or hearing the Justices talking over each other, which happened a lot toward the beginning of the arguments.

I’ll explain each of those phenomena for you. They don’t mean what you think they mean. It’s all good.

🤡 *THE PRO-MANDATE ARGUMENTS* 🤡

It often seemed as though the liberal Justices were trying to convince the LAWYERS instead of the other way around. The liberal Justices sure spent a lot of time arguing facts that were definitely NOT in the record. You might even call those “facts” misinformation. Here are just a few examples.

Each of the three liberal Justices told the lawyers, repeatedly, that the vaccines stop INFECTIONS, astounding many commenters. How is it possible that the judges on the highest court in the country misunderstand this basic fact, when it’s now well-known by every other citizen in the country except maybe some very old people in a nursing home someplace?

I mean, do the liberal Justices even read The New York Times??

At one point, Justice Breyer told the lawyers that a vaccine mandate would “prevent 100% of cases.” Justice Kagan announced it is “beyond settled” that vaccines and masks are the best way to stop the spread. Breyer repeatedly cited statistics about how the number of cases is now at an all-time high. He said that the U.S. is now averaging more than 500,000 cases per day – even higher than when OSHA first issued the vaccine-or-test mandate. And, he added, hospitals are “nearly full” with patients who are NOT vaccinated.

Justice Sotomayor may have been the one justice who seemed most poorly informed. She was also the only Justice who did not participate from the Courtroom, choosing instead to Zoom in from her chambers. Presumably, for safety. The Times suggested it was because she has diabetes.

At one point, Justice Sotomayor said there were “100,000 children in critical care for Covid, many of them on ventilators.” Wait, what? The actual number of kids hospitalized for Covid in the U.S. is around 5,000 — and that’s all of them, including those “with” Covid. And even more embarrassing for the Justice, there are only 81,000 TOTAL critical care hospital beds in the U.S. altogether. Whew.

On OutFront yesterday, CNN interviewed Dr. David Rubin, Director of Policy at the Children’s Hospital of Philadelphia, who said, “When we reviewed the data on kids in our hospital, we are actually seeing fewer kids in our intensive care unit. We are seeing types of seasonal illness we take care of every year.” Somebody should let Justice Sotomayor know so that she doesn’t worry.

Back to the orals. Sotomayor also stated — as facts — that: (a) Covid deaths are at an all-time high, (b) the hospitals are being overwhelmed, and — I am not making this up — (c) the Omicron variant is deadlier than Delta. I don’t even know what to say about that last one, except possibly, mass formation psychosis.

In the real world, the Daily Mail UK ran a story yesterday headlined, “Could Omicron be even LESS deadly than seasonal flu? Scientists believe ultra-infectious strain may kill 100 TIMES fewer people than Delta.” (Those capital letters are in the headline, I didn’t add them). Maybe someone who knows Sotomayor could forward the article to her?

Finally, in what might even become an historic embarrassment for the Court, Justice Sotomayor asked “Why is the human being not like a machine if it’s spewing a virus, blood-borne viruses?” Late comrade Stalin might have asked the same question. What, after all, do you do with a machine that is spewing virus? Shut it down, at the least.

🔬 *THE ANTI-MANDATE ARGUMENTS* 🔬

Lawyer Scott Keller began his argument by noting that, three days ago, the US Postal Service asked for an exemption from the OSHA mandate. Keller hilariously described this event as “the federal government is now seeking an exemption from its own mandate.” A great point.

Possibly most significant — because he is seen as a swing-voter — Chief Justice John Roberts chastised the Biden administration for seeking a “workaround” to the Constitution, as it was infamously described by Ron Klain, an agent for the Biden Administration. Roberts also referred to OSHA as a statute passed “50 years ago,” at a time “almost closer to the Spanish flu than it is to today’s problem.”

At one point the chief justice asked attorney Liz Murrill to respond to a lower courts’ statement that the pandemic is essentially over. Murrill declined to comment, even though she had made similar points in her briefs. Which was aggravating; it was a softball question. It makes me wonder how carefully the lawyers were trying to avoid creating soundbites or something. Roberts certainly knew that Murrill had made that point in her briefing, and so was handing her a chance to talk about it.

Justice Coney Barrett wondered about the perpetual state of emergency. “When does the emergency end? I mean, a lot of this argument has been about Congress’s failure to act. Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging?” She was wondering about how the OSHA rule was passed, bypassing normal notice-and-comment periods.

Justice Alito described using OSHA to accomplish the mandates was like “squeezing an elephant into a mousehole.” He also asked attorney Keller about the risks of vaccines, and whether any other OSHA rules require workers to do things that pose risks to them.

Justice Kavanaugh brought up the major questions doctrine, which is a tool the Court uses to curtail agency action. The idea is, Congress should pass laws having to do with “major questions” — not unelected, unaccountable executive agencies. It signals Kavanaugh is skeptical of the mandates.

Overall, while understated, quieter, and with much less volume or repetition, the anti-mandate case was in fact effectively made.

✒️ *UNDERSTANDING THE DYNAMICS* ✒️

Here’s some inside baseball to make you feel better.

First of all, oral arguments are NOT where the Justice’s minds are made up. People misunderstand oral arguments, thinking it is more like trial. In fact, it is more like public comment period at a county commission meeting or something. I would bet a LOT of money that the Justices had already drafted their opinions before oral argument; that the conservative justices were using oral arguments to test out their theories to make sure they didn’t overlook anything; and the liberal justices were just grandstanding for clicks.

It would be a mistake to think that anything was decided yesterday. It almost certainly was already decided. The Justices don’t really care what attorneys think. After all, who’s wearing the Black Robe, and who is only wearing a suit? The Robes tell the Suits what the law is, not the other way around.

Next, although it was frustrating not to hear the anti-mandate lawyers citing real Covid statistics, there are two good reasons why they didn’t. First, the case has to be decided on the LEGAL issues at this stage. So it doesn’t matter how dangerous or harmless Covid is right now. They didn’t waste their limited time arguing about that.

Second, the lawyers are only supposed to talk about facts that are in the record from the earlier hearings. I get it, the pro-mandate lawyers broke this rule a lot, but it has no legal effect. The Justices are supposed to ignore facts not in evidence. A lawyer’s remarks aren’t evidence. Again, the anti-mandate lawyers did the right thing by using their time on the legal issues and not irrelevant fact issues – even though the optics were poor.

Finally, the phenomenon where some of the Justices were talking over each other was more an artifact of having a phone hearing where they couldn’t all see each other. It happens; don’t read anything into it. It’s just a frustrating part of hearings where parties are on the phone and on a clock.

I will allow that one of the anti-mandate lawyers seemed to be struggling a bit. I won’t say which one out of professional courtesy. But I frequently felt that I wished I were handling those arguments; meanwhile reminding myself that it always looks easier when someone else is doing it. The liberal Justices weren’t making thing easy.

The bottom line is: the government lawyers argued that the Court should adhere to the LITERAL language of the OSHA and CMS statutes, which can be read — if you squint hard enough — to authorize injections. The States’ lawyers argued that the Court should recognize that Congress never intended those statutes to give OSHA and CMS authority to order mass vaccinations, and apply doctrines used to control executive agency overreach.

🔎 *PREDICTIONS* 🔎

According to Supreme Court custom, the Justices probably held a meeting after the oral arguments to take a straw vote and see if they already have a consensus. Given the emergency nature of the two mandates and their short fuses, the Justices know that they have to rule quickly.

If there isn’t consensus yet, the Court has the option of entering a short temporary stay while it continues considering the case. Several judges openly referred to this possibility during argument. Justice Alito once asked government lawyer Prelogar whether, if the Court enters a short administrative stay, “Are you going to say, well, they’re causing people to die every day?” So that’s possible.

It is also possible the Court will issue an order as quickly as Monday. I’m going out on a limb to say that is maybe the most likely of the possibilities. It is nearly certain that we will see a final order this month unless the Court enters a temporary stay. As I mentioned, I would not be surprised if a lot of the drafting were not already complete, or nearly complete.

I took a quick media survey, and for what it’s worth, liberal commenters appear to believe the majority will rule AGAINST the mandates. In an angry article this morning about the orals, Slate Magazine’s reporter whined that, “during oral arguments over Biden’s vaccine mandates on Friday, [the majority] justices made it painfully clear that they will also seize this moment to grind down the federal government’s ability to perform even its most basic functions as well.”

Gosh. That sounds bad. So anyway, Slate Magazine seems to think that the Court will enjoin the mandates. And the New York Times’ headline this morning was “Supreme Court’s Conservative Majority Appears Skeptical of Biden’s Virus Plan.” So the Times’ reporters appear to agree with Slate.

Other liberal media suggested that, based on the Justices’ comments and questions, the OSHA mandate would be enjoined but there was a chance that the CMS Mandate could survive review. This would not be completely surprising, since the hospital setting has a more compelling argument for vaccination. After all, hospitals have required staff influenza vaccination for a decade, albeit with liberal exemptions. But nobody seems completely confident that the CMS Mandate is safe, either.

The good news is we will almost certainly know soon. One way or another. If it’s the other, we’ll just have to start getting more creative. But I felt good about the death of the mandates going in to the orals, and I still feel good. After all, even the Biden administration was saying — just a few months ago — that it lacked constitutional authority to order mass vaccination.

Have a wonderful weekend! I’ll see you back here on Monday to catch up on all the Covid news.

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