Which legal arguments against OSHA's COVID-19 vaccination mandate are most likely to succeed?
Yesterday, the Justices (eight of them—Justice Kagan recused) heard arguments in Schuette v. Coalition to Defend Affirmative Action. (Briefs and coverage here.) In the wake of Gratz v. University of Michigan, Michigan voters (by a 58-42 margin) enacted Prop 2, a constitutional amendment that prohibits preferences based on race. The question is whether that amendment violates the Fourteenth Amendment. The theory is a “political process” argument: in competing for university admissions, applicants can still play their cello skills or what have you as a trump—but not their race: those folks must now agitate for another constitutional amendment to re-institute (barely) permissible preferences, and that’s a unique disadvantage. Crackpot? Some ancient cases suggest something like this theory, and the Sixth Circuit (8-7, en banc and strictly along partisan lines) bought it. The Supreme Court won’t. I commend to your attention the remarkable performance by Michigan Solicitor General John J. Bursch (transcript here). True, he had the easier side of the argument—but also plenty of opportunities to mess it up. He didn’t: he’s sure-footed, never wavers from his coherent theory of the case, leaves nothing on the table, and ends on exactly the right note: if you can’t distinguish the precedents on my theory, overrule them. That’s probably not going to happen , what with this “minimalist” Court. (Justice Kennedy, for one, will want to preserve the “political process” argument for another day and constituency—gays.) We’ll get another affirmative action case that comes out “right” but not as right as one would wish. But that’s hardly General Bursch’s fault. In a recent, much-noted interview, Justice Antonin Scalia noted how much better states’ advocacy has become over the years; this argument is a fine case in point. Hats off.
In other action, the Court granted six (out of nine) cert petitions to review the D.C. Circuit’s ruling in Coalition for Responsible Regulation v. EPA (the subject of numerous posts, most recently here). This, of course, is the global warming mess, created by the Supreme Court’s holding in Massachusetts v. EPA (2007). Regrettably, the Court has now limited its review to a single (narrow, statutory) question presented:
Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.
The correct answer (“no”) is developed in Judge Kavanaugh’s dissent below, and my strong suspicion is that the Court will take that route: it’s the easiest way to steer clear of a slew of complicated questions. So far, so good (one hopes). It’s important to be clear about the slightly depressing implications. Saying “no” is another way of saying that GHGs may be “pollutants” for one part of the Clean Air Act (mobile sources) but not, or rather not automatically, for the entire act. If the Court dings the EPA and the D.C. Circuit for holding otherwise, that means that we’ll be litigating the question of whether GHGs do or don’t qualify from here to eternity—one “endangerment finding,” one provision of the CAA at a time. In other words, the Supreme Court will have perpetuated the fine mess it created in Mass v. EPA—and handed cit over to the D.C. Circuit. Look, Ma: no hands!
No teeth and no responsibility, either.