January 11, 2022

By Bill Blum

-- “If the facts are against you, argue the law. If the law is against you, argue the facts. If the facts and the law are against you, pound the table and yell like hell.” Carl Sandburg.

Of the six Republican activists who masquerade as impartial guardians of the Constitution on the Supreme Court, none can match Associate Justice Neil Gorsuch for arrogance and gaslighting. This is particularly true when it comes to policy initiatives aimed at stopping the spread of the COVID-19 plague that has claimed the lives of 860,000 Americans.

On January 7, the high court heard oral arguments in two cases involving the Biden administration’s COVID-19 vaccine mandates. The first case--National Federation of Independent Business v. Department of Labor – involves an emergency order issued by the Occupational Safety and Health Administration (OSHA) that imposes a “vaccination-or-testing” requirement for the employees of large corporations. The second--Biden v. Missouri—concerns an order put in place by the Centers for Medicare and Medicaid Services (CMS), requiring vaccinations for health-care personnel who work in facilities that receive Medicaid or Medicare funding.

Although it’s sometimes difficult to predict the outcomes from the tone and tenor of oral arguments, the court seems poised to overturn the corporate mandate, but may, by a slim margin and with some caveats and limitations, uphold the heath-care directive.

The United States Supreme Court

In both cases, whether he finds himself in the majority or as a dissenter in the minority, Gorsuch can be expected to draft opinions that contend OSHA and CMS exceeded the scope of their delegated authority in issuing the mandates.

Any such opinion would be dubious on the law, as the statutes that created both agencies provide for the emergency actions they have taken. But in all likelihood, Gorsuch won’t be content with overturning the mandates on technical grounds. The odds are that he will go much further, and argue that the dangers of COVID-19 have been overhyped.

Don’t rely on me for predictions. Read through the transcripts of the arguments and make your own forecasts. The transcripts can be found here and here.

One exchange in NFIB between Gorsuch and U.S. Solicitor General Elizabeth Prelogar is especially illuminating. Gorsuch began the dialogue (at pages 120-122 of the transcript) by noting that OSHA has never mandated polio or flu vaccinations for workers. He then added, reportedly with a condescending laugh and in a style reminiscent of the fact-free ramblings of the president who nominated him:

“I mean, people forget polio. That was a pretty bad, you can call it a pandemic, you can call it an endemic, I don't know what you would call it, but it was a terrible scourge on this country for many years.

“We have vaccines against that -- that, but the federal government through OSHA, so far as I know, you can correct me, does not mandate every worker in the country to receive such a vaccine. We have flu vaccines. Flu kills, I believe, hundreds, thousands of people every year. OSHA has never purported to regulate on that basis.

What do we make of that when we're thinking about what qualifies as a major question and what doesn't?” 

Gorsuch’s blathering provoked a hailstorm of mockery on social media.

“Neil Gorsuch: pompous, arrogant, reckless, insensitive, ignorant. The Rand Paul of the Supreme Court,” Norm Ornstein, an emeritus scholar at the American Enterprise Institute and a contributing editor for the Atlantic magazine, tweeted.

“STOP GETTING YOUR MEDICAL STATS FROM FOX NEWS," Elie Mystal, a justice correspondent at The Nation, blasted in another tweet.

Unbeknownst, apparently, to Gorsuch, who received his law degree from Harvard and holds a PhD from Oxford, the United States has eradicated polio, in large part because of a massive national vaccination program initiated by the Eisenhower administration in the 1950s, well before OSHA was formed in 1971. Today, all 50 states and the District of Columbia require polio vaccinations for public school children before entry into kindergarten. Polio vaccines aren’t needed for U.S. workplaces.

Gorsuch also strayed from the facts in drawing an equivalence between the dangers of the flu and COVID. According to the Centers for Disease Control and Prevention (CDC), the flu kills 12,000 to 52,000 people annually in the U.S., far fewer than COVID-19.

As place of business, the Supreme Court has taken strict precautions against COVID. All the justices have been fully vaccinated and boosted, and the court’s protocols require lawyers to be tested for the virus. Two of the attorneys who participated in the mandate arguments were forced to make their appearances remotely in keeping with the protocols.

Seven of the justices wore masks, except while speaking. Gorsuch was the lone outlier, appearing unmasked throughout. Justice Sonia Sotomayor, who sits next to Gorsuch on the bench, opted to participate from her office.

Sadly, Gorsuch’s histrionics on the Biden mandates are by no means the first time he has blatantly gaslighted the legal community and the public at large about COVID-19. In two prior decisions, he falsely wrote that the Governors of New York and California had imposed COVID mitigation measures on religious gatherings that that “privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples.”

Dogmatism and dishonesty of such magnitude are rare among Supreme Court justices. But what is even more worrisome than Gorsuch’s personal quirks and views is that he and the court’s other Republicans embrace the longstanding conservative goal of rolling back the regulatory framework of the New Deal. As Steve Bannon, the former Trump adviser and recently re-indicted ultra-right podcaster, has explained, the ultimate prize is nothing less than the “deconstruction” of the administrative state.

Hostility to COVID-19 mitigation policies is only one facet of the court's overall record. In recent years, the court has issued a staggering array of right-wing rulings on such vital issues as voting rights and gerrymandering, environmental protection, union busting, campaign finance, most recently, abortion. With Gorsuch leading the charge, that record is only going to become more dangerous and extreme.  

For the latest and most incisive progressive and liberal commentary on the Constitution, the Supreme Court, and the all-important intersection of law and politics in the United States, follow Bill Blum on Twitter @BlumsLaw

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