XCR Forum banner
1 - 20 of 43 Posts

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #1 ·

11 Jan Jeffrey Tucker – Get the Courts Out of Science

Posted at 10:00h in Uncategorized by ericgeorgatos

Jeffrey Tucker at the Brownstone Institute continues to rise in prominence; the Epoch Times continues to feature his essays on current events. His latest intelligently expands on our earlier post: SCOTUS AND VACCINE MANDATES – CRY OR SCREAM, TAKE YOUR PICK.


From Tucker’s piece:


What absolutely cannot happen in any free, civilized, and stable country is to have such fundamental questions of liberty and bodily autonomy adjudicated by a panel of lawyers who have limited curiosity in the science, a lack of knowledge of facts on the ground that are available to anyone who cares, and who get their basic facts about a pandemic from TV talk shows and a prevailing media ethos that has no basis in reality.





The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state. It must be fixed. It won’t finally be fixed by a court but rather a dramatic cultural change that embraces certain fundamental propositions about liberty itself…


__


Get the Courts Out of Science – by Jeffrey Tucker

Commentary
This morning I listened to the oral arguments in the case of the Biden administration’s vaccine mandates as enforced by OSHA. It was a demoralizing experience.
I heard some crazy things, such as a claim that “750 million” Americans just got Covid yesterday, and that 100,000 kids with Covid are in the hospital, many on ventilators. The correct number is 3,300 with positive tests, but not necessarily suffering from Covid. I further heard strong claims that the vaccines block disease spread, despite every bit of evidence to the contrary.
It was my first time hearing oral arguments in the Supreme Court. I might have thought that facts on the ground would actually matter to people who are holding the fate of human liberty in their hands. I might have thought that they would be getting their information from somewhere other than their political intuition, mixed with wildly inaccurate claims from bloggers and media pundits.
I was wrong. And that is deeply alarming. Or maybe it is a wake up call to us all. We have learned today that these people are no smarter than our neighbors, no more qualified to address complicated questions than our friends, and arguably far less informed than the Twittersphere about basic issues of Covid and public health.
The backdrop of today’s arguments is that 74 percent of Americans of all ages have had at least one shot. Meanwhile, case numbers are up 500 percent in many places, and 721,000 new cases have been logged throughout the country, and that’s obviously a large underestimate because it does not count at-home tests which are selling out in stores around the country.
The extremely obvious point—the most basic observation one can make about this data—is that the vaccinations are not controlling the spread. This has been granted already by the CDC and every other authority.
No matter what people say in retrospect, I seriously doubt that anyone would have predicted a future in which the pandemic highs would be reached following mass vaccination. It’s not only true in the United States but also all over the world. However much they help with mitigating severe outcomes of the disease, at least for a time, they have not been successful in stopping the spread of the virus. They will not end the pandemic.
And yet, so far as I can understand this, that is the whole point of the vaccine mandate. It is to protect workers from getting Covid. There is no evidence that this is possible with mass mandates in the workforce. People can get and are getting Covid anywhere and everywhere, among which surely means the workplace too. The vaccine is not stopping that. What will bring this pandemic to an end will not be the vaccines but the adaptation of human immune systems, exposed and then developing resilience.
Apparently there was not one mention of natural immunity during the oral arguments, which is truly astounding. From what I could hear, there was a strangely truncated environment in which no one was willing to say certain obvious truths, almost as if a pre-set orthodoxy had been defined at the outset. There were certain givens that simply were not questioned; namely that this is a disease without precedent, that the state can stop it, that vaccines are the best ticket we have, that the unvaccinated have absolutely no good reason to remain that way.
To be sure, the oral arguments are not what decides a case. The briefs filed for the court are much better on the side of opposing the mandates, while the briefs for the mandates are filled with untruths that are easily exploded. In the end, it is very likely that the mandate will be struck down in a 6 to 3 vote. I’m glad for that. We should be relieved.
However, we need to do some serious thinking about what is going on here. We are talking about a mandate that profoundly affects the health and well-being of millions of people. The question of whether someone should take the vaccine is bound up with extremely complex empirical questions, and opinions run in every direction, from those who think it is the greatest gift of modern science to those who think the vaccines themselves are not only dangerous but also unleashing ever more variants. These are matters of science and should be subject to debate, with the final choices made by individuals.
What absolutely cannot happen in any free, civilized, and stable country is to have such fundamental questions of liberty and bodily autonomy adjudicated by a panel of lawyers who have limited curiosity in the science, a lack of knowledge of facts on the ground that are available to anyone who cares, and who get their basic facts about a pandemic from TV talk shows and a prevailing media ethos that has no basis in reality.
How did we end up here? We need the answers to this question. Certain issues should be absolutely off limits to the courts. Those issues pertain to fundamental questions concerning science and its application to human health. Of all things that need to be outside the realm of politics and the courts, it is these. The courts lack the competence. Even if the decision goes the right way, there is no real basis for feeling relieved and secure about our future.
Liberty can win this one and lose the next one. It all depends on the court appointments. This is not how a social order can operate. We need a system in which foundational issues of health, science, and liberty are outside the scope of the court system.
I wish I knew how to get there. We’ve been on a very long trajectory in which government exercises ever more control over our lives, inch by inch, for the better part of a century. We’ve come to the point where this control is a severe threat to our capacity to live free and dignified lives without being subject to the arbitrary whims of “experts” with power.
The courts have been too acquiescent for too long. If we had a really functioning court system and a Constitution that it followed, the forced closures of March 2020 would have been struck down in hours and ruled out as incompatible with freedom itself.
My highest hope is that the majority opinion here, if it goes the right way, will not be narrow and evasive, picking apart the mandate based on technicalities, but sweeping and fundamental. It should say in no uncertain terms that this mandate should never have been issued and that the court should never have to intervene in such matters in the future.
Freedom requires at least the presumption that businesses (and all institutions) can operate without acting as proxies for the federal health police—pushing injections on their workers against their will—and that workers have the right to determine what medicines they will and will not take.
The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state. It must be fixed. It won’t finally be fixed by a court but rather a dramatic cultural change that embraces certain fundamental propositions about liberty itself. We’ve played too many games and taken too many risks for too long.
Let us hope that this case awakens a culture and a world to a desperate need for dramatic reform. Human rights and public health are too important to be left in the hands of high courts.
 
  • Love
Reactions: willpgn

·
Registered
Joined
·
279 Posts
Good article…parts that stood out to me…

What absolutely cannot happen in any free, civilized, and stable country is to have such fundamental questions of liberty and bodily autonomy adjudicated by a panel of lawyers

Even if the decision goes the right way, there is no real basis for feeling relieved and secure about our future.

The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state.

Let us hope that this case awakens a culture and a world to a desperate need for dramatic reform. Human rights and public health are too important to be left in the hands of high courts.
 

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #3 ·
Good article…parts that stood out to me…

What absolutely cannot happen in any free, civilized, and stable country is to have such fundamental questions of liberty and bodily autonomy adjudicated by a panel of lawyers

Even if the decision goes the right way, there is no real basis for feeling relieved and secure about our future.

The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state.

Let us hope that this case awakens a culture and a world to a desperate need for dramatic reform. Human rights and public health are too important to be left in the hands of high courts.
Agreed. However, I think his hope is completely misplaced...at least in Amerika, where it seems to me more than half of us are a-okay with the government forcing shit down other people's throats if the state sponsored and accredited narrative supports it. Scary times.
 
  • Like
Reactions: willpgn

·
Registered
Joined
·
279 Posts
Agreed. However, I think his hope is completely misplaced...at least in Amerika, where it seems to me more than half of us are a-okay with the government forcing shit down other people's throats if the state sponsored and accredited narrative supports it. Scary times.
Indeed and well stated! I’m trying to hold out some cautious optimism for this country and it’s people…because if we can’t beat back this tyranny, who in today’s world can? 🤔
 

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #5 ·
Indeed and well stated! I’m trying to hold out some cautious optimism for this country and it’s people…because if we can’t beat back this tyranny, who in today’s world can? 🤔
If not us, who? If not now, when? Good points.
 

·
Registered
Joined
·
6,041 Posts
Your link to the Brownstone Institute article wasn't working for me. Here's a link to that article:

 

·
Registered
Joined
·
6,041 Posts
What absolutely cannot happen in any free, civilized, and stable country is to have such fundamental questions of liberty and bodily autonomy adjudicated by a panel of lawyers

Even if the decision goes the right way, there is no real basis for feeling relieved and secure about our future.

The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state.

Let us hope that this case awakens a culture and a world to a desperate need for dramatic reform. Human rights and public health are too important to be left in the hands of high courts.
Who would you want to decide such questions? I certainly don't trust any of the alternative authorities (Congress or the President, primarily) to make those decisions either.

The only sane way to deal with these questions is to say that they are off limits for government action. But you're still going to have politicians saying 'well, this one isn't really off limits'. That means you're going to need some authority to adjudicate the claims made by the politicians that they are allowed to do things because 'just this once, for a limited time, it's absolutely necessary to save the human race...'

So who is going to adjudicate those claims?
 

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #8 ·
Your link to the Brownstone Institute article wasn't working for me. Here's a link to that article:

Thanks for posting a new one....it's still working for me. Not sure why it's not for you. Apologies
 

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #9 ·
Who would you want to decide such questions? I certainly don't trust any of the alternative authorities (Congress or the President, primarily) to make those decisions either.

The only sane way to deal with these questions is to say that they are off limits for government action. But you're still going to have politicians saying 'well, this one isn't really off limits'. That means you're going to need some authority to adjudicate the claims made by the politicians that they are allowed to do things because 'just this once, for a limited time, it's absolutely necessary to save the human race...'

So who is going to adjudicate those claims?
Agreed. I don't trust any of them....and ultimately, I believe the founders intended THE PEOPLE to determine what's constitutional or not.

I guess what is most likely to happen is what already has and is happening now....SCOTUS will continue to hold what it and most Amerikans believe is final say on matters....and ultimately, if the people don't like it, they either have to revolt (peacefully or violently....that really depends on how government reacts to the peaceful attempts....not that Amerikans are likely to actually take that tack) or accept the chains placed on them by their political betters. I pray for a peaceful revolution.....but that's not the way to bet at this point. In fact, if betting....I'd wager we're all going to see more chains before any revolt of any kind....as it should be. "Not to be changed for light and transient causes"...to paraphrase.
 

·
Registered
Joined
·
6,041 Posts
FWIW, I had a conversation with Jeffrey Tucker at a conference several years ago, and was generally impressed with his thoughtfulness and knowledge level. In my (admittedly biased) view, he's one of the good guys.
 

·
Registered
Joined
·
279 Posts
Who would you want to decide such questions? I certainly don't trust any of the alternative authorities (Congress or the President, primarily) to make those decisions either.

The only sane way to deal with these questions is to say that they are off limits for government action. But you're still going to have politicians saying 'well, this one isn't really off limits'. That means you're going to need some authority to adjudicate the claims made by the politicians that they are allowed to do things because 'just this once, for a limited time, it's absolutely necessary to save the human race...'

So who is going to adjudicate those claims?
Those portions of the article were interesting to me because they asked the questions and pointed out what’s really at stake here…and let’s face it, many in this country have no idea what’s going on or is at stake here. Many (likely most) certainly don’t know where their “line in the sand“ is on tyranny of the state over the individual. I never thought that I’d have to think about mine, but the last 20 years (especially the last few) have driven those thoughts (man, ignorance is bliss). As a husband, father, American citizen and lover of freedom, these thoughts haven’t been all pleasant and some of Sean’s post above describe where I’m at in this space better than I could.

Anyway, to your questions, I don’t have good answers to these questions of “if not them, then who”. Yes, in the real world, I concede that humans will have to make decisions for humans, who are all flawed. This part of his article is at the root of my issue with this entire situation and is why I think Jeff wrote the article…not to provide answers, but to hopefully get more to ask the question and think about what’s really going on and what’s at stake.

“The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state.”

I’ve said in other posts, in my opinion, there isn’t a slippery slope behind this issue of “my body, my choice” and the state intervening in that space…it’s a cliff. Whether directly forced or coerced, there isn’t a difference, and if they can force this type of mandate, there isn’t anything else they can’t mandate. If they can control bodily autonomy of an individual, what else is left? Your thoughts? (don’t worry, I’m they’re working on how to “effectively tyranny” that as well!)

To me, Jeff’s article points out just how potentially fragile our system is at handling what I consider to be a self-evident truth. My body, and what goes in it, are solely a decision of mine (and my creator’s, if that is a factor for you)...certainly not 9 people.

Anyway, I apologize if this is confusing or rambling. I have lots of thoughts on these issues and it’s well organized in my head 🤯…I just lack the ability sometimes to effectively put them into words! 🧐🤣
 

·
Registered
Joined
·
279 Posts

“The US Supreme Court delivered a blow to President Joe Biden on Thursday, blocking his Covid vaccination-or-test mandate for large businesses.

At the same time, the nation's highest court allowed a vaccination mandate for health care workers at facilities receiving federal funding to go ahead.”

“The vaccination mandate for health care workers at facilities receiving federal funding was approved in a 5-4 vote, with two conservatives -- Chief Justice John Roberts and Justice Brett Kavanaugh -- joining the liberals.”

Gonna love to read how they stretched to get this opinion on CMS having this magical mandate powers…probably be as good as Obummercare reasoning!
 

·
Registered
Joined
·
841 Posts
It looks like scotus got it halfway right, to be honest I thought they wouldn't.
 

·
Registered
Joined
·
6,041 Posts
Original sources:




This is from the concurrence authored by Gorsuch, and joined by Thomas and Alito:

"OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA."

Personally, I'd argue that the constitution does not give Congress such authority to assign. It reserves police power to the states, and the federal government may not exercise this kind of authority, even if Congress were to claim that it could.
 

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #15 ·
It looks like scotus got it halfway right, to be honest I thought they wouldn't.
They aren't done yet. The tinfoil hat guy in me thinks this is all kabuki theater to give the appearance of honest, heartfelt deliberation over the facts....that way when they rule you don't have bodily autonomy and OSHA can force you to vax to maintain your employment, less sheeple will resist b/c "Supreme Court".
 
  • Like
Reactions: scalton

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #16 ·
Original sources:




This is from the concurrence authored by Gorsuch, and joined by Thomas and Alito:

"OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA."

Personally, I'd argue that the constitution does not give Congress such authority to assign. It reserves police power to the states, and the federal government may not exercise this kind of authority, even if Congress were to claim that it could.
I recently argued the same (police power was reserved to the states) and was told OSHA can issue citations/fines so it had 'police powers'. :SMH:
 

·
Registered
Joined
·
841 Posts
They aren't done yet. The tinfoil hat guy in me thinks this is all kabuki theater to give the appearance of honest, heartfelt deliberation over the facts....that way when they rule you don't have bodily autonomy and OSHA can force you to vax to maintain your employment, less sheeple will resist b/c "Supreme Court".
I fully agree with what you just said, they're not done yet not by a long shot. Give us a small victory well they plan their next draconian measure.
As I said before I am King of the tinfoil-hat people. I will not take this shot, This is My Line in the Sand I am done
 

·
Registered
Joined
·
22,807 Posts
Discussion Starter · #18 ·
I fully agree with what you just said, they're not done yet not by a long shot. Give us a small victory well they plan their next draconian measure.
As I said before I am King of the tinfoil-hat people. I will not take this shot, This is My Line in the Sand I am done
Similar mindset my friend.....though it's not that I'm against the vaccines so much (they initially did seem to make illness less severe for those who took it), but the coercive measures put in place to force the issue.

I do believe there's a lot of unknown risk to mRNA vaxxes as well as rushing attenuated ones (J&J anyone?) but just as large a problem is the fact that there are now allegations that the vaxxes compromise your immune system, that you can still catch and spread it with "similar" viral loads to the unvaxxed (negating the entire argument that we are responsible for each other's health), then there's the seriously flawed VAERS system and not being able to trust a thing government has to say on the subject b/c it has a vested interest in both power/control and monetarily for you to take a version of this vaccine. And those are just a few of the issues.....

My primary reason is: The principle of: My body my choice, though I do admit there's a tiny part of my spiritual side that bristles and thinks this is the predecessor to a system foretold in Revelation. If there's even an inkling that this is where things are headed, to my mind, that's enough to refuse it.
 

·
Registered
Joined
·
279 Posts
Some good summary and thoughts on the politics of these decisions yesterday…


🗞COVID NEWS AND COMMENTARY 🗞
👨‍⚖️ As I said, I was deep in furious drafting and researching when two strands of messages started coming in from all my contacts over email and in my texts. The OSHA group’s messages were ecstatic; a steady stream of high-fives and champagne emoji’s. The CMS folks were streaming an electronic river of tiny mad faces and that little emoji where the top of the guy’s head is going up in a mushroom cloud.
(I can’t believe I just used the word “emoji” in a serious sentence. Anyway.)
I will have more to say about the two decisions in coming days, as I have more time to unpack them and calculate the effects. Today you get my “hot takes.”
A LITTLE DISCLAIMER
Lawyers are referred to as “officers of the court.” We are often described as “part of the court system.” This sometimes translates into advantages like getting to enter the courthouse through the court’s private door, with no lines and simplified security. Some courts — a few — even let lawyers carry their concealed weapons in. Some judges don’t require lawyers to be sworn to testify, since we already have ethical duties of candor as officers of the court.
The ethical rules for lawyers prohibit us from criticizing specific judges and the legal SYSTEM generally. That doesn’t mean we CAN’T criticize them, but we are required to be professional and circumspect about it. The rule, exquisitely frustrating at times, does make sense. It’s kind of like the rule that an employee shouldn’t criticize their own company or their managers. Quit, then you can say whatever you want, otherwise keep your mouth shut.
Obviously, lawyers often dissect Supreme Court opinions and note silly things that Justices say. I can do that. I’m just letting you know, ethical lawyers aren’t supposed to tear them a new one or anything.
A LITTLE HISTORY
In the early part of the 1900’s, FDR — who never saw a socialist he didn’t love — tried to implement lots of federal control over the economy, which he called the “New Deal,” and the Supreme Court didn’t like it much. For example, FDR tried to pass a national minimum wage, and the Court struck it down as unconstitutional. A personal conflict between FDR and the Chief Judge spilled over into the nation’s headlines.
In 1936, Roosevelt was re-elected in a landslide. Shortly after, he announced a plan to increase the number of Supreme Court Justices from 9 to 13, which would give him five immediate appointments and allow him to “pack” the Court with friendly judges. His public explanation was that the Court just had too few Justices and couldn’t hear enough cases. So FDR sent a bill to Congress, which was held up in the Democrat-controlled Senate.
But in the meantime, the Justices got the message, loud and clear, and started finding new things to like about the New Deal and FDR’s socialist laws to be Constitutional. That sordid saga is now required history in law schools these days. It’s described as an extreme way that the executive branch can get control over the Supreme Court.
A LITTLE CURRENT EVENTS
Biden knew he would be taking office facing a conservative Court with three Trump-appointed Justices. Even during the elections in 2020, liberal pundits waxed eloquent on all the good reasons that a bigger Supreme Court would be a great benefit to the entire country.
On April 9, 2021 — four months after taking control — Joe Biden signed an executive order creating the Presidential Commission on the Supreme Court of the United States. The Commission’s purpose was to consider and recommend “improvements” to the Supreme Court including “the membership and size of the Court.”
During the next few months, I noticed and commented about a remarkable series of 9-0 opinions coming from the Court. What I said at the time — and still believe — is that the Supreme Court was sending the Biden Administration some kind of message. Something like, “you can add five justices but it won’t change anything because we’re going to vote together.”
But there was also a silk glove along with the iron fist of voting uniformity. During the same period, the Court turned down review of ALL the cases related to Biden’s signature “accomplishment”: high vaccine rates. Arguably, Biden has utterly failed in every single other area of governance: foreign policy, managing (or MIS-managing) Afghanistan, the economy, his poll numbers, and losing Democrat seats in state and local elections. The ONLY thing that was going his way was his vaccine plan — through brute force.
Which is why, if Biden can’t announce that he shut down the virus on March 1, he doesn’t really have a lot of good news to talk about. None, if you think about it. And, as I’ve explained earlier, I believe that’s why Narrative 2.0 — all-of-a-sudden — is that the pandemic is over. But that’s a separate issue.
On December 7 — a month ago — the Presidential Commission sent Biden its final report — which did NOT recommend packing or otherwise increasing the size of the Supreme Court. Leftwing media expressed outrage, and reported lots of Democrats, including lawmakers and influencers, frantically calling on Biden to pack the court anyway. In Twitter’s fever-swamps, this debate rages on, right now.
So the timing of the Court’s review of the two mandates could not possibly have been at a worse time for the Court, politically speaking. Note that I am NOT accusing the Supreme Court justices of being influenced by politics rather than reason in their decisions yesterday. I’m just noting some interesting and possibly-related historical and current political trends. I’m just saying.
A LITTLE BABY SPLITTING
My initial reaction to the two decisions is to note a bunch of curious elements. I haven’t put it all together yet, but let’s just take a gander at a few things that stand out as we try to wrap our lockdown-fatigued brains around what — superficially, at least — looks at first blush like a very schizophrenic pair of decisions.
Judges love “baby splitting.” The term refers to that old story about King Solomon where he suggested the solution of cutting a live baby in two to find out who the real mother was. But that’s not what it means in present vernacular. It just means that judges like to give both parties something, to divide the decision somehow, so that nobody’s completely happy but — more importantly — nobody’s completely left high-and-dry and outraged at the judge.
It seems to me that, it must have been very tempting to shoot for a baby-splitting solution at a time when the Court’s composition rests precariously on top of a giant pile of political tinder, with social and emotional court-packing gasoline soaked all through it, deciding the issue that could shatter the microscopic Biden legacy at a time when he and the Democrats control all the levers of power in Washington. Regular readers may recall that, after hearing oral arguments, I predicted the exact result that we saw: the OSHA Mandate was stayed, and the CMS Mandate was green-lighted.
Having two cases gave the Supreme Court a political opportunity to split the baby.
So, even if it wasn’t their express objective, the dual decisions did split the baby and did defuse a court-packing atom bomb. In other words, if both mandates had remained stayed, and not just one, then liberal demands for a packed court would have spiked higher than Omicron cases in New York.
A LITTLE COINCIDENTAL TIMING
It is interesting that both decisions issued simultaneously. If you think about it, apart from the fact that the two cases were both about vaccine mandates, they were two different lawsuits, two completely different sets of statutes, with two different sets of issues, and — most important — two different configurations of Justices.
There is no question that the Court must have held up one of the decisions, the one that was finished first, until the other decision was also done, before releasing them both together.
Why? Why not issue the first decision as soon as it was ready, then later issue the second decision when that one was done? It could have helped SOMEBODY. The fact is, I do not know the reason. Only the Supreme Court knows why. But it was extremely POLITICALLY convenient for them both to issue together. Had the OSHA decision come out first, the media would have gone crazy calling for court packing. Had the CMS decision issued first, a massive tsunami of conservative dissatisfaction would have begun to form somewhere off the Atlantic coast.
Issuing the two decisions together stopped both sides from developing momentum. Coincidentally.
A LITTLE ODD AUTHORSHIP
The majority opinions of Supreme Court decisions can be written several ways. The most common one is where the deciding Justices sign the opinion, and you can tell who wrote it and who joined it, fully, partially, etc. For example, in Janus v. AFSCME (another prominent case from 2018), the majority opinion was signed like this:
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
But both of the decisions issued yesterday were signed in a much less common way: “PER CURIAM.”
Wikipedia defines the term: “In law, a per curiam decision is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively.” It notes “the decisions of the U.S. Supreme Court are usually NOT per curiam … Per curiam decisions tend to be short. In modern practice, they are most commonly used in summary decisions that the Court resolves without full argument and briefing.”
So the OSHA and CMS decisions don’t match the normal characteristics of a per curiam decision, which itself is a rare form. So these decisions are a super-rare type.
The term basically means, “for the whole court.” One consequence is that you can’t tell who authored the decision. Nobody takes the credit or the blame. I’m not saying it proves the Court had political concerns about the decisions, but it is suggestive.
A LITTLE ODD LANGUAGE SELECTION
You aren’t going to see a lot of quotes from either main opinion. The Court didn’t wax eloquent in either the OSHA or the CMS case. It’s not that the decisions were ineloquent. They were neutrally-toned, workmanlike, boring. They focused, by and large, on very technical issues of statutes and doctrines. There were no high principles expressed. No new law was made. I would be surprised if either case is ever cited by any other case except maybe for technical issues like the bare existence of the “major questions doctrine.“
The dissenting opinions in both were slightly more passionate, but even in those, one can’t help but feel a little disappointed. They were predictable, merely tracking comments already made by the Justices at oral argument. Nothing new. No strong condemnations. And — in particular — they didn’t point out the huge weaknesses in the reasoning, especially of the CMS case.
There were notable facts missing. Neither the OSHA opinion nor the CMS opinion cited the number of deaths from Covid, for example. You’d think that at least the CMS opinion would have mentioned it. Neither opinion — and this is really remarkable — discussed the efficacy or lack of efficacy of the vaccines, except only to attribute conclusions to the Secretary or the lawyers. The Court usually FINDS things, not quotes the parties or their lawyers.
If I had to choose one word to describe the language and tone of both opinions, it would be, “restrained.” It is almost like the decisions were written in order to offend the fewest number of folks.
A LITTLE MISSING AUTHORITY
Since I’ve been litigating in this space for almost a year now, I was looking to see how the Court handled one case in particular — and I was shocked when I didn’t find it. I tried searching the PDFs — nothing. I tried a different PDF viewer thinking that there might be a problem with my default one. Nope. I tried searching for a bunch of other stuff just to make sure search was working. Zip.
The Jacobson case has gone missing.
Jacobson v. Massachusetts — the only Supreme Court case that has previously discussed vaccine mandates, the case that has been cited, at length, in almost every single lower-court decision, has apparently vanished from the Earth.
It’s vanished from the Supreme Court, anyway. Neither of the two opinions mentions Jacobson — EVEN IN DISSENT. Not even in a footnote.
Why is this important? Because Jacobson held that the authority to coerce people to take vaccines comes from STATE POLICE POWERS. From the States. It’s a problem for both mandates. But it wasn’t used to deny the OSHA Mandate, and it wasn’t distinguished or overridden to support the CMS Mandate.
Where, oh where, has my Jacobson gone? Where, oh where, could it be?
I suppose this is a stealth way to override precedent by just ignoring it. Not a good look.
A LITTLE “I TOLD YOU SO”
Regular readers will recall that when I predicted that the Court would uphold the CMS Mandate, it would rely on the fact that hospitals have already been requiring healthcare workers to take influenza vaccines. Well, this is what the Court said in its CMS opinion:
Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella. As the Secretary explained, these pre-existing state requirements are a major reason the agency has not previously adopted vaccine mandates as a condition of participation.
See? This is the slippery slope in action. We should have pushed back against vaccine mandates in hospitals ten years ago.
I know, I know! Don’t swamp the comments explaining how different the Covid injections are from all those other ‘real’ vaccines. I get it. I do. And I totally disagree with the Court’s reasoning in the CMS case, not least because it didn’t follow or even try to deal with the Jacobson precedent.
A LITTLE WHAT’S NEXT
So what do we do now? My Disney and Florida Power & Light clients are super happy, understandably. All my healthcare clients are freaking out, understandably.
The first thing we have to do is see how the Biden Administration will react. This isn’t terrific timing for them. If they were smart, they’d put a hold on the CMS Mandate themselves, for two reasons. First, the Narrative 2.0 project kicked off AFTER these cases were at the Supreme Court. The mandate, and all its fallout, isn’t exactly consistent with the new narrative. So there’s that.
But second, all we hear about now are the “critical staffing shortages” in hospitals. This decision is going to spray kerosene on the staffing bonfire. CMS will have to do something; as it stands, uninjected employees are already too late, past the original deadline. They are due to be fired immediately. That’s a lot of nurses and doctors. Can they possibly do that during an Omicron surge, with hospitalizations still leaping forward and facilities already underwater?
Are they going to send military doctors to every hospital in the country? Are there even that many military doctors?
CMS paused its own mandate on December 1, after the Missouri decision. It will have to un-pause the mandate now. And probably, at least, revise the deadlines. What will it do? We wait to see.
After that, we will need some good, practical strategies for our fellow citizens who are in healthcare jobs and are under the mandate’s hanging Sword of Damocles. We’ll be working on that. Stay tuned.
Those are just my initial thoughts about all this. More to come.
Have a fantastic Friday and I’ll be back here tomorrow morning with more.
 

·
Registered
Joined
·
6,041 Posts
The fact that the decisions were released on the same day indicates that there was a lot of horse trading between the justices behind closed doors. Roberts, for example, is basically a central government authoritarian, and would have wanted the court to support the CMS mandate as a condition of voting against the OSHA mandate.

I agree with his thoughts on Jacobsen. No one wanted to mention it because it says that the states have the authority to issue mandates. The 'left' justices didn't want to discuss that because it shoots their whole case (for federal mandates) down. The 'right' justices didn't want to mention it because doing so brings the issue of the federal government exercising police powers into play in a situation where they might lose the argument. They'd rather see that question addressed in a case on something like federal riot police, so they will have the support of the 'left' justices in striking down federal police powers.
 
1 - 20 of 43 Posts
Top