The ‘nihilism’ and ‘armchair epidemiology’ of the Supreme Court majority

I’m not a lawyer, but I play one on HTV. It’s my understanding that federal agencies have broad enough mandates to anticipate public health crises and situations requiring swift action because Congress, rightly, cannot predict their occurrences. Seeing an opportunity to undue an administrative state with roots in the Great Society and New Deal, Chief Justice John Roberts and his Sinister Six would let hospitals fill and people die for the sake of a conservative bugaboo. “The nihilism, hypocrisy, and armchair epidemiology on display at times bled into rank anti-vax-ism,” Dahlia Lithwick and Mark Joseph Stern report for Slate.

In the first case, the Occupational Safety and Health Administration requires companies with a hundred-plus employees to ensure they get jabbed or subject them to weekly tests. The second case depends on Health and Human Services’ requiring companies accepting federal funds to ensure their employees get jabbed, a mandate to which Roberts and perhaps Justice Amy Coney Barrett appeared more sympathetic.

But, oy, the bad faith on display! Lithwick and Stern:

The anti-vax sentiments surfaced in earnest when Alito hounded Prelogar about the risks of vaccines. He insisted that he didn’t want to be misunderstood: “I’m not saying the vaccines are unsafe. The FDA has approved them. It’s found that they’re safe. It says that the benefits greatly outweigh the risks.” However, he then insisted, some people will suffer “adverse consequences,” because “there is some risk.” Prelogar reiterated that the Food and Drug Administration has found vaccines are safe and effective “by orders of magnitude.” Because he now sounded like he was spreading anti-vax madness and the press would report that fact truthfully, Alito scolded Prelogar: “I’m not making that point. I’m not making that point. I’m not making that point. There is a risk.”

“I’m not making that point that I am making” is the way cases are discussed now.

Listening to oral argument yesterday, I can’t emphasize how snarky and aggrieved Alito sounded. If the federal government agency approved the vaccines, and the executive branch wants to mandate their use, then the OSHA move is not just unconstitutional but inherently bad. This is the subtext of Alito’s questioning. Listen: there is a risk, there is a risk, there is a risk of injury with seat belt use. Alito would’ve made this counterargument during the days when reading John Cheever’s Falconer repelled him. More than Roberts, who has to consider the incense and choirs of angels for the sake of the Court’s prestige, or Clarence Thomas, whose constitutional thinking, insofar as we can consider it thought, is as consistent as a burp after sipping a Coke, Alito is the worst of the Supremes: fifty years of conservatism condensed into charmless pedantry. Every justice (even Thomas!) wore a mask save Neil Gorsuch (check out the dickish comment by a former clerk); Sonia Sotomayor, a diabetic, participated via telephone. The two state lawyers arguing against the Biden administration mandates did too…because they tested positive for COVID.

It so happens that I picked up the splendidly named Alpheus Thomas Mason’s classic The Supreme Court: From Taft to Warren earlier this week. The writer quotes Attorney General (and future associate justice) Robert H. Jackson:

The measure of success of a democratic system is found in the degree to which its elections really reflect rising discontent before it becomes unmanageable, by which government responds to it with timely redress and by which losing groups are self-disciplined to accept election results [italics mine].

Germane to our times, no? Jackson published The Struggle for Judicial Supremacy in 1941. He could not have predicted how the party of which Samuel Alito is a member would regard self-discipline as an invention of Karl Marx’s. As for “rising discontent,” well, can you find self-testing kits at your CVS? What did exit polls reveal about why Americans chose Joe Biden as president?

Here is a final quote from a footnote in Mason’s book by Jerome Frank:

The fact is, and every lawyer knows it, that those judges who are most lawless, or most swayed by the “perverting influences of their emotional natures,” or most dishonest, are often the very judges who use most meticulously the language of compelling mechanical logic, who elaborately wrap about themselves the pretense of merely discovering and carrying out existing rules who sedulously avoid any indication that they individualize cases.

The people rest.

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