News from the Supreme Court over the past week may or may not tell us something about Justice Neil Gorsuch as a colleague. But it most certainly tells us a lot about him as a jurist ― and how his way of thinking is already reducing the federal government’s ability to address serious problems, including threats to public health.
The potential insights about Gorsuch as a colleague come from National Public Radio’s Nina Totenberg, who reported on Tuesday that Sonia Sotomayor has been participating in oral arguments virtually because Gorsuch refuses to wear a mask, defying a suggestion from Chief Justice John Roberts.
Just for context, Sotomayor is 67 and has diabetes, putting her at greater risk of severe COVID-19 complications. Gorsuch sits next to her on the bench, making his refusal to mask downright callous if Totenberg’s sources are correct.
That’s still an “if,” because Gorsuch and Sotomayor on Tuesday issued a brief joint statement insisting they are “warm colleagues and friends.” Roberts followed with a statement of his own, saying he never asked Gorsuch or any other justice to wear a mask.
Both the statements and Totenberg’s original article were worded carefully enough to allow some ambiguity about who said what and when. NPR for its part is standing by Totenberg, who is among the best-connected, longest-serving legal correspondents in Washington ― and whose revelations about Supreme Court personalities have held up to this sort of scrutiny before.
The broader context of Totenberg’s article was tensions among the justices, including some on display earlier this month when they heard oral arguments in a challenge to the Biden administration’s vaccine rules for the workplace. The rule got a hostile reception from the conservatives, much to the dismay of the liberals, and it telegraphed the outcome: a 6-to-3 decision blocking the vaccine rule from taking effect.
The court’s unsigned opinion embraced arguments that Gorsuch had made for years and came with a concurring opinion from Gorsuch himself spelling out some of those arguments in more detail. The basic, underlying message of both opinions was that the Occupational Safety and Health Administration lacked authority to impose such a rule on corporations or individuals.
OSHA had predicted the vaccine rule would save 6,500 lives over six months, while reducing hospitalizations by 250,000 ― potential benefits that Gorsuch and the rest of the conservative majority said were not relevant to their decision, since it’s the court’s job to police the boundaries of government power, rather than set public health policy.
That may be true. What’s also true is that boundaries of government power have been the subject of debate for a long time, with Gorsuch advancing a tendentious, strongly anti-government view that may be a lot less rooted in constitutional history than conservatives would have everybody believe.
The Argument Over Vaccine Requirements
The case of the vaccine rule is a perfect example. It ordered most employers with more than 100 workers to require either proof of COVID-19 vaccination or rigorous testing and masking procedures. When OSHA published the rule in November, it cited its charter’s grant of emergency powers to protect workers from a “grave danger” or “new hazard.”
“Workers are getting sick and dying every day because of their exposure to the virus at work,” Solicitor General Elizabeth Prelogar said during oral arguments. “What we’re trying to do here, what OSHA did was rely on its express statutory authority to provide ― to provide protection to America’s workforce from grave dangers like this one.”
Courts have long granted executive branch agencies this kind of leeway on the theory that they can marshal expertise, adapt to new circumstances and respond to novel threats in ways that 535 representatives and senators never could. To liberal justices like Elena Kagan, OSHA’s vaccine order made perfect sense in that context, even if it was unprecedented in scale.
“It’s an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before,” Kagan said at oral arguments.
The six Republican appointees made clear they disagreed. Roberts twice brought up the fact that the OSHA charter dates to the early 1970s. “That was 50 years ago that you’re saying Congress acted,” Roberts said. “I don’t think it had COVID in mind.”
Associate Justice Samuel Alito was troubled that OSHA’s regulation had effects outside of the workplace, not just within: “If you’re vaccinated while you’re on the job, you’re vaccinated when you’re not on the job. Isn’t this different from anything OSHA has done before in that respect?”
But the most hostile questions came from Gorsuch, a longtime critic of what he sees as excessive government regulation. In his concurring opinion, Gorsuch alluded specifically to a pair of conservative principles, the “nondelegation” and “major questions” doctrines, which essentially limit Congress’ ability to hand authority over to federal agencies and require highly specific instructions when Congress does.
The theory behind both principles is that the Constitution places power to set policy with regularly elected members of the legislature, not unelected executive branch officials and bureaucrats. Both the major questions and nondelegation doctrines, Gorsuch wrote, “are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.”
The Argument Over Government’s Reach
Conservatives like Gorsuch think of themselves as “originalists” who are properly interpreting the Constitution as its authors intended. To justify their skepticism of agency power, they cite Article I’s allocation of “all legislative powers” to Congress. But there’s good reason to question that interpretation, including those University of Michigan law professors Nicholas Bagley and Julian Davis Mortenson raised in a widely cited 2020 Columbia Law Review article.
Among other things, the professors found, early American history is replete with instances of the federal government delegating authority to agencies with little objection from officials of the time, even though many had played a role in writing the Constitution: “The people who drafted and debated the Constitution virtually never raised even policy objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.”
That’s not to say conservative objections to aggressive federal regulation are new. On the contrary, conservatives have been looking for ways to limit the reach and power of federal agencies ever since the early 20th century, when Progressive Era reformers enacted the first modern consumer and labor protection laws and created agencies to enforce them.
Conservatives on the Supreme Court spent the next few decades striking down many of these programs, which they deemed violations of personal or corporate liberty or menaces to prosperity. They stopped in the 1930s, around the same time President Franklin Roosevelt, frustrated at seeing the same justices strike down parts of the New Deal, threatened to enlarge the court and fill it with more sympathetic jurists.
A political detente of sorts followed, both on the courts and in politics writ large, and for a few decades conservatives and their allies mostly made their peace with a bigger, more aggressive government. That mood prevailed through the late 1960s and early 1970s, when lawmakers created not just OSHA, but also the Consumer Product Safety Commission, the Environmental Protection Agency and the National Transportation Safety Board.
These agencies came with broad mandates ― to make sure air and water don’t contain dangerous levels of pollution, to make sure travel and consumer products are safe, and so on. Their appearance also fueled a new backlash among conservatives, who resented the new interference.
Their biggest electoral victory came with the 1980 election of Ronald Reagan, whose deregulatory agenda included appointing administrators who were actively undermining the work of their agencies. As it happens, one of them was Anne Gorsuch, Neil’s mother, whose brief tenure as director of the EPA included big budget cuts, fights with longtime agency staff and a dramatic reduction of actions against polluters.
“All of these arguments ... are just different ways for the conservative justices to enact their own deregulatory preferences.”
- Leah Litman, University of Michigan Law School
Reagan’s rhetorical attacks on faceless bureaucrats were always crowd pleasers, in part because the public’s faith in government in general had declined so precipitously since its post-World War II peak. But Americans still cared a lot about clean water and air, and safe products and travel, which is why neither Reagan nor his successors ever pushed their anti-regulatory agenda as far as they might have wished ― and why they rarely undermined agencies in ways future administrations haven’t been able to undo.
The judicial part of the right’s campaign may have more long-lasting effects. Republican presidents up through Donald Trump have packed the courts with Federalist Society acolytes who disdain aggressive regulation and are determined to do something about it. Gorsuch is one of those judges and, with the appointments of Amy Coney Barrett and Brett Kavanaugh, he has what looks like a working majority to put at least some of his theories into practice.
The arguments they deploy today aren’t precisely the same ones conservatives were using back in the early 20th century. The “major questions” doctrine didn’t even exist back then. But Gorsuch and company are trying to accomplish the same basic thing their pre-New Deal predecessors were, according to Michigan law professor Leah Litman, who is also co-host of the “Strict Scrutiny” podcast.
“All of these arguments ... are just different ways for the conservative justices to enact their own deregulatory preferences,” Litman told HuffPost.
The Argument Over Democratic Accountability
There’s a certain irony in these justices rejecting a COVID-19 rule in the name of democratic accountability, seeing as Trump’s poor handling of the pandemic was a big reason he was voted out of office in 2020. Voters have no such recourse when it comes to unelected conservative judges, even though they could have an enormous influence on public policy in the next few decades.
“No matter what issue you care about, there is likely a federal regulation that shapes the nation’s approach to that issue,” Ian Millhiser of Vox wrote in March of last year. “If the Supreme Court strips the government of much of its power to promulgate these regulations, it could effectively grind down the Biden presidency — not to mention dismantle much of American law.”
Going forward, one likely target of conservative scrutiny is the EPA. The Biden administration, like Barack Obama’s before it, envisions the agency writing aggressive regulations on planet-warming emissions. It would do so using authority under the Clean Air Act, given the widespread evidence that a warmer planet threatens the health and safety of millions.
These are precisely the sorts of rules that could be out of bounds under the newly prevailing conservative doctrine ― and have already run into conservative judicial resistance once, at the end of Obama’s term, when the court blocked a set of clean air regulations from taking effect.
The legal debate over climate rules is, in some respects, a slow-motion version of the debate over efforts to fight the pandemic. Stripped of doctrinal disputes over constitutional intent and meaning, it’s an argument about whether individuals and corporations have some obligation to consider how their actions affect public safety and health ― and under what circumstances (if any) the federal government can regulate those actions.
This has always been contested territory in American politics, never more so than in the past two years during the pandemic. Mask and vaccine requirements have generally polled well. But plenty of Americans object and in extreme cases have acted out violently against them, which is why there has been this constant stream of stories about anti-maskers assaulting retail clerks, flight attendants and teachers.
Gorsuch and his conservative allies aren’t engaging in any similarly violent acts, obviously. And there is no reason to assume principled opponents of government regulation lack concern for the well-being of their fellow citizens. But the vision of government these conservatives endorse is one less capable of preventing harm and saving lives, which is why the projected human casualties of last week’s vaccine ruling are likely a sign of things to come.