While many of us were enjoying time off for end-of-year holidays, the United States Supreme Court added extra work for several lawyers.   On December 22, the Supreme Court issued two orders in four cases involving two of the Biden Administration’s vaccine mandates — one involving health care workers and one involving large employers.  In these orders, the Supreme Court granted review and set the cases for expedited argument this upcoming Friday (January 7).   There are several issues worthy of comment on this order.  The first comment is a little “inside baseball.”  The other has to do with what is really happening here as oppose to how the media might comment on this case.

Starting with the inside baseball part of this issue, over the past several years, there has been growing criticism of how the Supreme Court is using the “shadow” docket.  The shadow docket is a reference to applications for stays of lower court rulings (or alternatively a request that the Supreme Court issue a temporary injunction that the lower court refused to issue).   If the application is completely frivolous, it can be denied quickly by an order.  If there is some merit, the Supreme Court might request a response.  After receiving the response, the Supreme Court typically resolves the application by an order or a brief unsigned “per curiam” opinion.  Unless some justice opts to file a concurring or dissenting opinion, the order or opinion does not note the votes of the justices.  All that we know is that, at least five justices, agreed with the order or opinion.  These cases are typically resolved without full briefing or argument.  As some significant issues have come through the shadow docket over the past several years, this process has come under some criticism.  This year, we have seen the Supreme Court opt to grant argument on three separate occasions to matters arising from the shadow docket — first on a question about ministers in the execution chamber (argued but still awaiting a decision), second on the ability to challenge the Texas abortion statute, and now on the Biden vaccine mandates.  In the first two cases, the parties did get to submit full briefs on an expedited basis.  That is not so for the vaccine mandates.  While, maybe, the Supreme Court would have gone this right under any circumstances, clearly the fact that the shadow docket is starting to become an issue is something that the Supreme Court has to be concerning to the justices.  Perhaps, the Supreme Court will continue to hold expedited argument on major issues arising on the shadow docket to avoid Congress taking action.  Only time will tell.

Turning to the merits, while the media will focus on these cases being about vaccine mandates, that framing is misleading at best and wrong in many respects.  While the cases do involve a challenge to vaccine mandates, the legal issues have very little to do with vaccine mandates.  There is no claim in these cases that vaccine mandates violate the rights of anybody.   Cases asserting a right to not be vaccinated have uniformly been rejected.  (To be blunt, those cases demonstrate the hypocrisy of the right wing of the Republican Party.  At the same time that they are asking the court to overturn Roe vs. Wade, they are bringing these cases asserting a right to bodily autonomy that depend largely on Roe.)  Instead, these cases involve two other issues. Continue Reading...