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There was an announcement (now a thing) that the Supreme Court would drop one or more opinions. So, this brought expecations of the vaccine cases or maybe some other lingering one like that now mostly forgotten fast track death penalty religious liberty issue. Instead, we had this 8-1 job:
In an 8-1 decision in Babcock v. Kijakazi, the court rejected the arguments of David Babcock, who worked as a dual-status technician from 1975 to 2009. In that role, he worked as a test pilot and pilot instructor and also served in the National Guard.
The question concerned whether his "pension fell under an exception for pension payments that are “based wholly on service as a member of a uniformed service.” He lost. Barrett wrote a short statutory interpretation opinion. Gorsuch dissented even more briefly, tossing in some smarmy sounding (admittedly I'm expanding a bit there) comments about how he was somewhat embarrassed about being a solitary dissenter.
Oh well. So, nothing to stress out about ...
funny boy. Mid-afternoon, again without them actually showing up, the vaccine cases dropped. The result was fairly expected except for maybe the exact vote totals. It just is a question why they didn't just do it in the morning. Is there some rhyme or reason to this? It is not a matter of not being able to finish. This was not just something (like a death penalty deal) they just was working on the day before. It seems intentional.
The broader vaccine or mask/testing mandate for large employers was blocked [note this was a request for a stay, so in theory had a high test for success] 6-3, with a rare joint dissent (see, e.g., the PPACA Cases), if one that sounds Kagan-esque in tone. The majority (in both cases) was per curiam, though I believe we can assume all six of the conservatives joined the one, and the four dissenters in the other are on record.
Suffice to say the reasoning was stupid. And, offensive in some fashion, such as one opinion (not the main one) including referencing vaccines as some major medical procedure, with Barrett (who blithely spoke about baby drop boxes as a solution to anti-abortion laws) joining that frame. Gorsuch not wearing a mask was connected to his votes here, quite well.
The opinion is darn short -- it's like ten pages long (three conservatives joined a "major questions" type of concurrence that would have gone further to put a questioning eye on administrative law), and reference things like the novelty of the matter (wonder what's novel that warrants it) and how vaccines affect more than workplaces (the mask alternative is more limited and so what -- if something necessary for work place safety has out of work effects, it still is necessary for work place safety).
The joint dissent (though Breyer's name is cited first by seniority, which might confuse) points out how the statutory language reasonably is applied and the balance of equities doesn't warrant a stay. But, 6>3, even if the three are corruptly there.
The liberals also basically have to triage, that is, pick their spots and find where they can find two votes for sanity. That's the other more limited regulation involving Medicare/Medicaid funds in health centers. Nonetheless, even there, four conservatives (including Barrett) dissented. So, we have the "when can we find Roberts and Kavanaugh" (or some other person as the case might warrant, Gorsuch now and then being libertarian or finding statutory language warrants something etc.).
The first opinion leaves open, in theory, more limited requirements (such as for very crowded work places). This is where we are now -- the "mother, may I" approach where five might allow for something (though the critics will logically not emphasize that), and Biden et. al. has to find room to act where they can. Still, talk about how "disappointed" they were about the decision comes off as lame. I get it though. Nonetheless, long term, this sort of opinion should be cited to push for change.
ETA: One thing to toss in here is that per curiams often don't have headnotes. Anyway, Strict Scrutiny Podcast had a somewhat disappointing "emergency podcast" (no link for you!) on the result.
They spent so much time (though was there some sort of time limit?) on the first, they spent less than five minutes on the second. They didn't even talk about the two dissents, one by their favorite hate target, Justice Alito.
One thing highlighted by the podcast was how the OSHA opinion started by [dubiously] referencing a "vaccine mandate" and only later noting the testing/mask alternative. This to the trio was a slight of hand on the majority's hand. And, note how this slants their reasoning. Testing/masks can be limited to the work place [the universal effect of vaccines is something they underline though if something is occupational, it very well might also have effects after you leave].
They suggested Roberts or maybe Kavanaugh (Roberts is good for the compromise/ends result sort of deal; Kavanaugh likes to toss in comments about how reasonable he is being, here perhaps to reassure conservatives) wrote the OSHA ruling. I'm not sure if he does that as often.
Who wrote this one? After all, some see a disconnect between the two opinions, but that might just point to their ends result/pragmatic [an aspect of judging] sentiments. There is a footnote, so maybe that counts out Breyer, who never uses them. There is a bit of wordplay in the note: "We see no reason to let the infusion-clinic tail wag the hospital dog, especially because the rule has an express severability provision."
The opinion seems to me to carefully address the statute and procedural details. Also, the opinion doesn't seem to even mention the other one. It would be logical if it did, to underline the difference between the two. The OSHA opinion also uses italics for argument in a way the other does not.
It's possible to do so, though that doesn't mean you will accept the differences are strong enough for a split ruling. But, neither opinion refers to the other. I think that suggests different authorship. I think there is a case to be made that Kagan wrote it. The podcast didn't go all the way there, but did note that the opinion seems to follow her "you can't kill your patient" comment at oral argument. And, a form of this shows up.
Finally, there is a bit at the end of the OSHA opinion where it says it is not their job to balance equities, but to determine if the regulation was properly established. The other opinion factored in the situation to help determine if the regulation was arbitrary and capricious. As noted by the joint dissent, this is what the law warrants when deciding to grant a stay.
Anyway, after starting off on an okay foot (minus the "vaccine mandate" bit), the OSHA opinion shifts gears about halfway in. As a basic matter of good opinion writing, the other opinion is better. The clear language, citation of the relevant materials to build the argument, and ending on the right note (agency has limited power, but given the authority here) all did a good job of it.
No matter who wrote the darn thing.
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While we were processing this, there was the ongoing push to put voting rights front and center in the Senate. Sen. Sinema, not that this actually surprises any more than the Court rulings, said "NAH!" with some ... well asinine is one way to put it ... approach where she supports the legislation, but strongly opposes changing the filibuster. Which means she doesn't actually support the legislation. That's the net reality realistically.
This was the big "fuck you" moment, but her bullshit about the filibuster and comity was previewed by Senator Manchin (already on notice for BBB). His talking points about the filibuster as some ancient constitutional principle continued to be parroted by the media (hey, we are just stating things), without enough pushing back that they were based on bullshit.
The net result here is that Biden and the Democrats look like big fat losers, even if you provide a list of things they managed to do with all the burdens in place. The Democrats inability to deal with these two assholes, who spout bullshit to enable the insurrection party in their ever continuing efforts to suppress the vote and throw doubts on elections (at least when the other party wins), is aggravating. If Democrats lose in November, people will justify and say "I told you so" as if the Dems as a whole are to blame.
It's simply the work of fucking morons given the state of affairs, as again, we have major prosecutions reminding us of what the alternative might be. What the hell is wrong with you? It also is just tiresome to draw this damn thing out. Some Democratic senator got COVID (proxy voting has to be a thing in the Senate, people), which delays things a bit, but I saw something where Tuesday (after the holiday) will be the vote.
Fine. After the President of the United States strongly voiced support of voting rights, the House voted on it, a majority of the Senate claims at least to strongly support it, and we have a holiday to honor a civil rights icon who in part lead the issue to promote voting rights, we can have a procedural vote where the Republicans and two assholes (maybe Schumer will ultimately go along for procedural reasons) block it.
I am not sure what the next step here is. What is 2022 going to be all about? I guess the next logical thing is to yet again try to find some method (people still saying there might be) to get Manchin to support some form of the big reconciliation package. Time has a tendency to go by. We are already half-way into the first month of the new year. Before you know it, it will be the heat of the 2022 election cycle.
Will we have the same old laws in place, with a packed Supreme Court and anti-voting rights laws helping to pollute the results? Meanwhile, I assume we should watch and see what else we find out about the 1/6 and related Trump lawsuits, including out of Georgia. The Supreme Court -- showing less speed of course than on the vaccine cases -- is examining another Trump running out the clock lawsuit connected to the 1/6 Commission.
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