Opinion | What the Supreme Court’s Vaccine Case Was Really About

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By Linda Greenhouse

Contributing Opinion Writer

Halfway through his pained dissent from the Supreme Court’s decision blocking the Biden administration’s workplace Covid vaccine rule, Justice Stephen Breyer made a glancing reference to a now-obscure case from 1981, American Textile Manufacturers Institute v. Donovan. It was one of the court’s first efforts to interpret the 1970 law that created the Occupational Safety and Health Administration.

There surely was nothing casual about Justice Breyer’s citation to this case, once the stuff of headlines. He is the court’s authority on administrative law, a subject he taught for many years at Harvard Law School and that has never been more important, or contested, than it is today, as we see now in the court’s decision on the OSHA vaccine directive. At issue in the 1981 case was the validity of OSHA’s imposition of a new limit on textile workers’ exposure to cotton dust, a workplace hazard that causes serious lung disease. Upholding the rule, the court rejected the industry’s argument that OSHA was required to show that the benefits of any standard outweighed the costs.

The case has a fascinating back story. In the lower court, President Jimmy Carter’s administration had naturally defended its own rule. But when the Supreme Court heard argument in the case, it happened to be on the day after President Ronald Reagan’s first inauguration in January 1981. The new administration had not had time to vet all the government’s positions in pending cases, and a career lawyer in the solicitor general’s office argued in defense of the rule. Then things changed. In April, the newly staffed solicitor general’s office informed the justices that the administration was reconsidering the government’s position. It asked the court to remove the case from the docket, vacate the lower court opinion that had upheld the rule, and send the cost-benefit issue back to OSHA.

For the next two months, there was nothing from the justices but silence, not even an acknowledgment of the administration’s bold request. The court’s next word was its opinion, issued that June 17, upholding the cotton-dust standard and ruling that Congress had not placed a cost-benefit limitation on OSHA’s rule-making authority. Only in a footnote in his majority opinion did Justice William Brennan observe, almost slyly, that “we decline to adopt the suggestion” that the court should turn the case back to the new administration.

That case stands for a time when the Supreme Court was willing to rescue an administrative agency’s authority from the storms of politics. Was that Justice Breyer’s point in citing it? I don’t know, but what jumped off the page to me was the contrast between how the court behaved in 1981 and what happened last Thursday in National Federation of Independent Business v. Department of Labor, when six justices yielded to politics to disable an agency from carrying out its statutory mission to protect the health and safety of the American work force. That is where we are now. That’s how far the court has fallen.

The fact is that this dispute — which, remarkably, found 27 states aligned against the federal government — was never principally about the vaccine. OSHA’s “emergency temporary standard,” under which employers of 100 or more people were to require vaccination or weekly testing, was mainly a target of opportunity. It offered the conservative justices a chance to lay down a marker: that if there is a gap to fill in Congress’s typically broadly worded grant of authority to an administrative agency, it will be the Supreme Court that will fill it, and not the agency. “Placing constraints on the administrative state,” as Eugene Scalia, Justice Antonin Scalia’s son and secretary of labor during the last year of the Trump administration, observed in a Wall Street Journal op-ed in praise of the decision, is “a defining concern of the Roberts court.”

There is a rich irony to the political valence of this project. In the Chevron case in 1984, the court held that judges should defer to an administrative agency’s reasonable interpretation of an ambiguous statute. The decision was unanimous and at first made few waves, as its author, Justice John Paul Stevens, noted in his 2019 memoir, “The Making of a Justice.” But it was to become the most frequently cited opinion Justice Stevens wrote in his 34 years on the court.

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