In October 2021, Supreme Court Justice Sonia Sotomayor turned away a request from a group of New York City teachers challenging the city and state’s vaccine mandate for public school employees after a federal district court denied their challenge. The request went to Sotomayor because she handles such requests from the region. A few months prior to that, Justice Amy Coney Barrett had also rejected a request to block Indiana University’s vaccine mandate. And later in October, the court turned away a challenge by Maine health care workers to their state’s vaccine mandate.
Sotomayor did not refer the request to other justices or provide commentary with her refusal, but likely turned down the case because there was precedent from Barrett and because the court hasn’t gotten involved in the implementation of state and local governments’ public health policymaking. Until now, that is, and Justice Neil Gorsuch deciding he knows better than Sotomayor or anyone else.
The New York teachers took the unusual step of renewing their request, specifically with Gorsuch. They probably picked Gorsuch because he had written a scathing eight-page dissent in the Maine case, joined by Justices Clarence Thomas and Samuel Alito, in which he argued those who lack a religious exemption “are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.”
The New York teachers played to that argument. In their appeal to Sotomayor, they argued that it was unconstitutional for a variety of reasons, including concerns about the long-term effects of the vaccine, the fact that they couldn’t work if they didn’t get it, and that it “threatens the education of thousands of children in the largest public-school system in the country and violates the substantive due process and equal protection rights afforded to all public-school employees.” But their appeal to Gorsuch was different: “They say that while the city allows some religious accommodations, the exemptions are too narrow and don’t cover their objections.”
Gorsuch also wrote a lengthy dissent in a declined request from Catholic health care workers in New York who argued that they believe “abortion-derived fetal cell lines” are used in “production or testing” and thus declared the vaccine violates their religious beliefs. (Presumably, they also eschew taking acetaminophen, ibuprofen, and aspirin on those grounds.) Gorsuch likened the complainants to Jehovah’s Witnesses who decline to pledge allegiance to the U.S. flag, because trying to prevent a deadly pandemic from spreading and reciting words at a national symbol are the same.
At any rate, the religious freedom gambit worked for this group of teachers. Gorsuch is referring the case to the full court, which again is not a normal kind of thing that happens in the court. “Supreme Court rules allow a party to make a renewed request to ‘any other justice’ after a denial from the justice who has jurisdiction over the lower courts involved in the case,” CNN’s Supreme Court reporter Ariane de Vogue explains. “The rules state, however, that such a renewed application is ‘not favored.’”
Like Gorsuch is going to be constrained by rules or respect for his colleagues and the precedents they have set, especially Sotomayor. Remember last month’s kerfuffle when NPR’s Nina Totenberg disclosed in her reporting that Gorsuch refused to wear a mask during a hearing, forcing Sotomayor to dial in remotely for her own safety? She’s a diabetic, and thus at high risk for dangerous complications from a COVID-19 infection. Totenberg reported that Gorsuch had been asked to mask up to protect her, and that he refused to do so.
This also follows on Gorsuch’s big, private speech at an annual conference of Florida Federalist Society chapters. The speech was closed to the press, the only event at the conference that shut reporters out. You know the Federalist Society—the far-right, dark money group that has dictated most Republican presidents’ judicial nominations, ensuring wingnuts (like Gorsuch) dominate the court.
These are the same wingnuts who struck down the vaccine mandate imposed by the Occupational Safety and Health Administration (OSHA) for large employers because: “Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.”
Because the virus spreads everywhere, including schools (hey, New York teachers!), it’s not a matter within OSHA’s purview, even though it can also spread in workplaces. This reasoning, as Mark Sumner points out, “provides every employer, every conservative organization, and every Republican attorney general the perfect opening to destroy safety regulations across the board.”
This court, dominated by the likes of Gorsuch, Alito, and Thomas, is extreme. This court is dangerous. It needs to be reformed and it needs to be expanded.
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