If you read the legal language in the Occupational Safety and Health Act, which authorizes the Occupational Safety and Health Administration to act in an emergency capacity when workers face “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and when “such emergency standard is necessary to protect employees from such danger,” you might think that the Biden administration’s vaccine mandate stood a good chance of surviving the Supreme Court’s review.
But if you watched Fox News at all over the past year, you would have guessed that it was doomed.
Yesterday, the Supreme Court blocked the Biden administration’s mandate, which compelled companies with more than 100 employees to require their workers to be vaccinated against COVID-19 or tested regularly. (The Court narrowly allowed a similar requirement for health-care workers to remain in place.) The majority’s reasoning is that because the hazard of COVID-19 is present outside the workplace, OSHA exceeded the authority it has to regulate workplace safety.
“COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the unsigned opinion reads. “That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
This is laughable logic. OSHA regulates many, many hazards that are also present outside the workplace. The fact that you can die in a fire in your apartment is not an argument against regulating fire hazards in factories or offices. The mandate applied to firms whose employees have to work indoors, because that’s how the virus spreads. Moreover, unlike attending a sporting event as a spectator, people have to go to work, unless they’re lucky enough to be, say, a Supreme Court justice, in which case you can work remotely.
The majority’s answer to this obvious rebuttal, which gets closer to the motivation behind the decision, is that a vaccine “cannot be undone at the end of the workday.” Similarly, a concurring opinion written by Justice Neil Gorsuch portrays vaccination as “a medical procedure that affects [people’s] lives outside the workplace.” In their dissent from the decision upholding the mandate for health-care workers, Justices Gorsuch, Clarence Thomas, Amy Coney Barrett, and Samuel Alito insisted that “these cases are not about the efficacy or importance of COVID-19 vaccines,” while describing the vaccine-or-test requirement as forcing health-care workers to “undergo a medical procedure they do not want and cannot undo”—as though having to get a shot is a greater imposition on people who have chosen to work in health care than the imposition of not getting a shot would be on the patients who would be exposed to a potentially fatal infection they do not want and cannot undo. (Never mind that the OSHA rule allowed for those who didn’t want to get vaccinated to simply get tested regularly.)
These are melodramatic and overwrought ways to describe vaccination, which involves getting a shot and moving on with your life. Infants react to getting vaccinated with greater dignity and composure. But this is of a piece with the cultural and political shift that has taken place over the past year, in which prominent conservative figures and media outlets have chosen to undermine the federal government’s public-health response to the pandemic by attacking vaccines as dangerous and portraying vaccine mandates as tyrannical.
It is to be expected that a conservative-dominated Court would be hostile to federal regulation of business. And it makes sense that the justices would also express their opposition in federalist terms, arguing that the states can do what the federal government can’t. But the decision in the employer-mandate case, and the dissent from the four conservative justices in the health-care case, hinges on a new and alarming embrace of the right-wing culture war against vaccination, a deeply regrettable cost of conservative political strategy and political-identity formation.
Fox News, day in and day out, has discouraged its audience from getting vaccinated and promoted anti-vaccine propaganda, even as it maintains a strict testing and vaccination regimen for its own staff. The right-wing network has not just attacked mandates as tyranny, but suggested that the vaccines will kill those who get them, challenged the efficacy of the vaccines, and argued that they are making the pandemic worse. The network’s hosts have compared vaccine requirements to Jim Crow segregation and South African apartheid, historical events they consider crimes against humanity in this particular context but in any other would argue weren’t that bad, happened a long time ago, and you should really get over it. It was arguably inevitable that the justices would echo their cultural milieu—in which a COVID vaccine is like a mark of Cain that stains the soul forever—in their decision.
The conservative wing of the Court wants to have it both ways: insisting they are not questioning the safety or efficacy of vaccination, while issuing decisions that are entirely premised on the right’s newfound and quasi-religious conception of them as traumatic and metaphysically significant—a necessity for the mandates to be seen as oppressive. This is little more than culture war dressed up in the language of constitutionalism.
This shift was evident during the oral argument, when the justices who signed on to Gorsuch’s concurrence raised soft anti-vaccination talking points. Although technically the argument was about whether to stay the mandates while the legal challenges against them proceed, the arguments were focused on whether the mandates themselves were lawful. When it came to the employer mandate, the Republican-appointed justices were profoundly skeptical. And not just skeptical of federal power to regulate business, but skeptical of the vaccines themselves, even when they were strenuously claiming not to be.
Thomas questioned whether “vaccinations are efficacious in preventing some degree of infection to others,” and asked, “Is a vaccine the only way to treat COVID?” Although the Omicron variant has shown itself able to break through vaccination, it is not the only variant in circulation, and the vaccines remain effective against all variants in preventing many deaths and hospitalizations.
Gorsuch compared COVID to the flu, and asked why OSHA had not mandated flu vaccines, even though the flu is nowhere near as lethal as COVID.
Alito prefaced a question suggesting that the vaccines were unsafe by insisting that he was not suggesting the vaccines were unsafe. “I don’t want to be misunderstood in making this point, because I’m not saying the vaccines are unsafe,” Alito said to Solicitor General Elizabeth Prelogar. “Has OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk, on the employee, so that if you have to wear a hard hat on the job, wearing a hard hat has some adverse health consequences? Can you think of anything else that’s like this?”
As the justice knows, the mandate contains religious and medical exemptions, and so the purpose of the question was to raise doubts about the safety of the vaccines themselves, despite his extensive disclaimer.
The justices’ reasoning follows the path set by the rest of their political coalition. Their academic pedigrees and social status do not insulate them from adjusting their views to fit those of the community they have chosen. Anti-vaccination sentiment was once more evenly distributed between parties and ideologies; imagining that an anti-vaccination ideology could have taken hold of the left is easy; if it had, this dispute might look very different.
The political scientists Christopher Achen and Larry Bartels write in Democracy for Realists that when voters with strong political identities “consider new issues or circumstances, they often do so not in order to challenge and revise their fundamental commitments, but in order to bolster those commitments by constructing preferences or beliefs consistent with them. They sound like they are thinking, and they feel like they are thinking. We all do.”
Surely the sophisticated legal minds who make up the Supreme Court are resistant to this sort of crude rationalization. The truth is the reverse. As Achen and Bartels write, “political rationalization is often most powerful among people who are well-informed and politically engaged, since their fundamental political commitments tend to be most consistent and strongly held.” (In fairness, this is probably as true of opinion journalists as it is of Supreme Court justices.)
Conservatives were often vocally pro-vaccination in the past, when anti-vaccine sentiment was vaguely associated with people the comedian Jon Stewart once mocked as “science-denying affluent California liberals.” With “affluent California liberals” as a symbol of the anti-vaccination movement, conservative culture-war instincts trended in a more constructive direction. Indeed, a 2015 measles outbreak at Disneyland illustrated the importance of mass vaccination to obtain herd immunity and suppress disease.
Many conservatives at the time made precisely that point. “If you think about the childhood illnesses that once permanently debilitated people like my grandfather, who contracted childhood polio—and you think today that measles, rubella, polio have been eradicated from the U.S. and much of the world—why would we go backwards?” Senator Ted Cruz asked in 2015. “In a feat that would have been unimaginable a few decades ago, the anti-vaccine movement has managed to breathe life into nearly vanquished childhood diseases,” the conservative pundit Rich Lowry had lamented presciently a year earlier. “Nothing good can come from undoing one of the miracles of medical progress.”
The logic of vaccine mandates, too, was well accepted on the right. “Some say the decision to vaccinate or not should be the parents’ choice,” the conservative writer Thomas Sowell argued in 2015. “That would be fine if their child would live isolated from other children. But that is impossible.” Many articles from 2015 were bitterly angry at the suggestion that conservatives were anti-vaccine, and blamed media bias for it. There were certainly disagreements over federal authority to mandate vaccines, but those differences of opinion were less significant, because immunization remained a thoroughly bipartisan cause, and Republicans had not embraced anti-vaxxers as a constituency. Today, Republican elected officials have begun opposing such mandates even on the state level.
Now Cruz complains about Big Bird encouraging children to get vaccinated while Lowry writes rageful op-eds attacking “the idiocy of covid-vaccine mandates for kids.” In 2015, Senator Rand Paul of Kentucky tweeted a photo of himself getting a booster shot to rebut liberal media bias; in 2021, the career ophthalmologist announced that he was refusing to get the COVID vaccine. As Lowry observed in 2015, anti-vaxxers tend to be “doggedly impervious to evidence.”
The idea that vaccination is unsafe or ineffective, and that vaccine mandates are a harbinger of state tyranny, is now a part of conservative political identity, which makes the right-wing justices see the OSHA mandate as unlawful no matter what the law actually says. As Justice Elena Kagan put it during the oral argument, “I don’t know about that kind of doctrine in the OSH Act or any place else in administrative law, that because you can say that, you know, somebody would prefer not to be regulated, the agency loses its power.”
That, unfortunately, gets to the heart of the matter. But because the text of the OSH Act is so clear, the conservative justices, typically so insistent on strict textual interpretation, had to get philosophical. Because what they know, as good Fox News–watching conservatives, is that they don’t like the mandate. They understand that their fellow conservatives would prefer not to be regulated in this way. And therefore the mandate must be unlawful.
With all the sophistication of a bong rip in a dorm room, the majority writes, “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” Setting aside the false notion that regulating workplaces where COVID spreads easily is “untethered” from the workplace, was there, in that half century, a once-in-a-century pandemic that killed nearly a million Americans? The majority’s slippery slope is bulldozed flat by its own argument; the fact that OSHA has never before issued such a regulation is itself a reflection of the unique circumstances of the moment.
Perhaps you might say that the Democratic appointees are similarly arbitrary in their reasoning. I’m not arguing that the liberal justices possess divine infallibility. They simply don’t have a 6–3 majority on the Court, and the country is therefore not subject to their whims. The Court is a site of political combat, and its composition and rulings reflect that reality, not the illusion of impartiality that the justices and their advocates insist on putting forth as a way to defend the legitimacy of the Court’s right-wing majority. As these decisions show, the Court’s future hinges less on the text of federal law and the Constitution than on the capricious process by which conservatives define what it means to be one of them, where even something as miraculous and benign as immunization can become a culture-war battlefield.
One of the stranger elements of the Trump administration was that the president would spend much of his day watching Fox News and issue executive orders or policies based simply on his reaction to what he saw. Understanding why and what the president was doing required knowledge of Fox News’ daily programming. It seemed like a comical absurdity: the most powerful nation in the world being run by a guy screaming at his television from the couch. And yet, it’s not clear that the honorable justices of the Supreme Court are all that different.