Vaccine mandate hearings – Supreme embarrassment

Yesterday (7 January) the Supreme Court of the United States of America heard arguments on the federal vaccine mandate. To be more specific, they heard argument on the “OSHA Rule” for private employment and another rule for federal contractors. The cases involved are NFIB v. Department of Labor and Ohio v. Department of Labor.Two Justices of the Supreme Court embarrassed themselves and their Court when they tried to argue the government’s case. Not only were their acts utterly improper, but their fact assertions were downright false.

Vaccine mandate oral argument feed and excerpt

The best available coverage of the vaccine mandate hearings comes from PBS News Hour (nearly four hours of listening)

and the Erick-Woods Erickson Show.

Justice Sonia Sotomayor, by all odds, showed the worst behavior in the history of the Court. There she sat, as the mandate-challenging counsel tried to explain that Congress needs to authorize a vaccine mandate explicitly. The snippet from C-SPAN from the article from Mediaite contains this dialog. The speakers here are Justice Sotomayor and Scott Keller, attorney for the National Federation of Independent Businesses.

Sotomayor trashes Constitutional law

Q. … to tell an agency, in an emergency, “Do what’s necessary.” I don’t think Congress can do it. Do you?

A. If Congress was going to give an occupational health agency the type of power to essentially regulate directly the employee rather than telling employers these are the things that you would want to do within your workplace, it would had to provide that clearly.

Q. What’s the difference between this and telling employers where sparks are flying in the workplace workers have to wear a mask?

A. When sparks are flying in the workplace that’s presumably because there’s a machine that’s unique to that workplace.

Q. Why is the human being like a machine if it’s spewing a virus, bloodborne viruses? Are you questioning Congress’ power or desire that OSHA do this if already in 1991 it told OSHA to issue regulations with respect to Hep C and B?

A. Justice Sotomayor, I think that exactly proves our point. Congress knows how to enact a statute when it wants to give OSHA…

Q. [interrupting] It didn’t enact a statute. OSHA proposed regulations…

And there the snippet cuts off.

Note carefully: Justice Sotomayor admits Congress did not enact a statute in the cases at hand. This after she and Keller already established that Congress did so back in 1991.

Sotomayor wants emergency plenipotentiary powers for government

What, then, is she trying to say? She is claiming that time-honored (or time-dishonored) word emergency. In other words,

We can’t wait! People are dying, you idiots! Get the jab, or get out of our sight and stay out!

Worse yet, Justice Sotomayor, in seeking to justify the vaccine mandate, compares human beings to machines. You can imagine the reaction.

(See here, here, and here.)

Among other Sotomayor-isms, she said the Omicron variant was just as deadly as the Delta.

That is ridiculously easy to disprove.

Creative Destruction Media charged that:

Opposing counsel was strangely silent during this rant.

That could be because the rules of the Supreme Court require counsel to wait until the Court finishes talking. That obviously did not apply to those outside the Court that caught Sotomayor out in one misstatement after another:

Or to show how her colleagues asked the right questions:

Indeed Chief Justice John Roberts frostily accused the government of trying to “work around” the separation of powers.

Sadly, Justice Stephen Breyer behaved just as badly.

The problem and the point about the vaccine mandate

Whether or not the vaccine mandate would succeed in saving lives is not the issue. Two Justices of the Supreme Court tried to make it the issue. Creative Destruction Media said “opposing counsel was strangely silent.” Again, maybe the Court rules say, “You wait until we finish talking.” Or maybe “opposing counsel” did not want to concede that whatever facts Sotomayor and Breyer JJ tried to assert, would matter in the least.

Others have readily shown that Sotomayor and Breyer JJ were making false and misleading statements. But true or false, those statements could never be proper. This was not a trial of fact. Appeals and writs of certiorari have nothing to do with a trial of fact. If this were the case of Cinque et al. v. United States Navy, relating to the slave mutineers aboard a ship named Amistad, different rules would apply. The Supreme Court has original jurisdiction in cases at admiralty and maritime law. But this is not an admiralty or maritime case, and in fact is a review, which is what “certiorari” means. Therefore the safety or efficacy – or danger and counter-efficacy – of COVID vaccines are non-issues. The only relevant issue is whether a vaccine mandate constitutes a valid exercise of federal police power.

Chief Justice Roberts knows this, showed as much in his own questioning about “workarounds.” Justice Amy Coney Barrett knows something else: the government gives no endpoint to the emergency. Therefore the government is claiming a power to mandate vaccines indefinitely.

What this means moving forward

At this point, the Court would surprise CNAV were it to uphold the federal vaccine mandate. States may do as they please, according to this Court, but not the federal government.

But we have seen that Barack H. Obama and his predecessor Bill Clinton made some thoroughly bad Supreme Court appointments. Sotomayor and Breyer JJ rate removal from the bench on impeachment for, and conviction of, bringing their Court into disrepute. Not only did they each make many false and misleading statements and assert many “facts” nowhere in evidence. But they also advanced propositions no free republic can tolerate. Propositions like asserting that quasi-legislative and quai-judicial executive agencies know more than Congress knows. As if Congress cannot find out, or that Congress could delegate its legislative authority to anyone. And also that a government may declare an emergency and assume plenipotentiary and perpetual power.

Their presence on the Court is bad enough. Add to it that Joe Biden’s handlers still want to “pack” the Court with more Sotomayor and Breyer JJ. Now one can readily see how dangerous the Democratic Party has become.