In the Storm: Could It Get Worse?

By Scott V. Sandford
Law and Justice Editor with Don Kent in the Spy Weather Center

Outside our newsroom window today it looks something like this:

We don't have anything much to say about the weather, other than to hope you got your Doritos at the Market Basket before they ran out (more bad news for Biden!), but it did get us thinking about the other storm raging, not just in New England.

We're referring to the ongoing assault on our democratic institutions at the hands of enraged white supremacists stirred up by the Former Loser Grifter.  As Barton Gellman said in this month's Atlantic:

Technically, the next attempt to overthrow a national election may not qualify as a coup. It will rely on subversion more than violence, although each will have its place. If the plot succeeds, the ballots cast by American voters will not decide the presidency in 2024. Thousands of votes will be thrown away, or millions, to produce the required effect. The winner will be declared the loser. The loser will be certified president-elect.

The prospect of this democratic collapse is not remote. People with the motive to make it happen are manufacturing the means. Given the opportunity, they will act. They are acting already. 

White men will do great under Republican rule, right?

Think he's being hysterical? Read it for yourself and tell us what he got wrong.

And it wouldn't be the first time this century that the popular will was overturned by legal or illegal means.  The same thing happened in 2000 and 2016, and in each case one party (the Republicans, if you didn't take the hint) were perfectly OK with it, just as white supremacists of both parties were OK with suppressing the votes of Black Americans from 1789 to 1965, and then again after 2013 (thank you, John Roberts '76!).

This is certainly bad news for minorities, women, and other groups in the gun sights (literal and figurative) of white supremacist Republicans.  But let's consider what it means for white men like us.

You might think that the collapse of democracy and its replacement by white male Republican oligarchy wouldn't affect white men too badly.  We could still lift weights with Squiggy and drink ourselves insensible during Beach Week.  We don't need abortions.  We aren't stopped and shot by police on the basis of our skin color.  And if we're rich or old, we have health insurance.

What could go wrong?  Well, for those of us of the Hebrew persuasion (as our classmates used to say) plenty.  It turns out that the same nice white folks Biden didn't reach out to who are working to suppress any discussion of America's 400 years history of slavery and racism are also working to suppress telling their children about the Holocaust.

Last week, the white men comprising the McMinn County Tennessee school board decided that their impressionable eighth graders should no longer read Art Spiegelman's classic graphic memoir of his father's experience in Nazi concentration camps, Maus, because there was some bad language.  The details weren't too important to these crackers:

In any event, Shamblin suggested, this [deleting the bad words] wouldn’t do: “It’s more offensive than that.” He added this kicker: “I have not seen the book and read the whole book. I read the reviews.” The only item on the meeting’s agenda was what to do about Maus, and this board member had not bothered to glance at it. 

It doesn't get any whitemanner than that. Except for this one fun fact:  the county seat of McMinn County is, wait for it, Athens.

Don't worry; your free press is safe with them

Suppressing whole swaths of mankind's recent history to make dopey white men feel better about themselves might raise First Amendment issues. Before white men in smoking jackets get too comfortable with their rights under the First Amendment, maybe they should read it: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

You'll no doubt recall that one of the white reactionary Republican priorities since 1968 has been to pack the Supreme Court with narrow minded Republicans who believe in interpreting the Constitution according to its literal words only (“textualism”) or the presumed original intent of the white men, many of them slaveholders, who wrote it (“originalism”).

Don't leave – this is going to get less boring, we promise.

The words of the First Amendment bind only the Congress.   They don't prohibit any state, any county, or any school board from regulating or suppressing free speech as they see fit.  And as we know from McMinn County and an insane number of other places that have banned telling the truth about American history, they see fit. 

So why can't they?  Well, in 1964 the Supreme Court held that the First Amendment protection of free speech did apply to states in a case called Sullivan v. New York Times, 376 U.S. 254 (1964):

By the way, lots of rights are protected from state interference on the same basis, even though they aren't explicitly stated in the Bill of Rights, like the right to abortion and bodily autonomy set out in Roe v. Wade.  And that principle, known as “incorporation,” is an unshakable pillar of Supreme Court jurisprudence.

STOP PRESS: We're just being handed a bulletin by our intern Louise.  It looks the right to abortion will end this year.  As Justice Long Dong Thomas said at oral argument:

“What is confusing is that if we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written, it’s there. What specifically is the right here that we’re talking about?” Thomas asked. 

There's no “specific” Constitutional right protecting speech from being regulated or suppressed by a state as it sees fit either.

Of course, Justice Pubes on Cokes hasn't ever questioned the broad protection for free speech against state regulation established by New York Times v. Sullivan, has he?

Another funny story! 

Just before the Fourth of July holiday, Justice Thomas again urged his colleagues to revisit Sullivan, this time joined by Justice Neil Gorsuch....Thomas noted that, "[t]he lack of historical support for this court's actual-malice requirement is reason enough to take a second look at the court's doctrine," and urged the Court to reconsider Sullivan as it has "real-world effects. Public figure or private, lies impose real harm."

This year, the right to abortion disappears.  Next year could be free speech's turn.  Imagine if you will that “Ladies' Man” Clarence Thomas and “Thanks Mom” Gorsuch manage to persuade Sulky Sam Alito, Spooky Amy Barrett and Brett “I just want to grab it” Kavanaugh that it's time to teach the media a lesson and limit, if not overrule, Sullivan.

Or they could adopt an attitude of “neutrality” as between speakers and states that want to limit such speech.  Just like abortion.

Maybe white men shouldn't look so smug

All five have been subject to what they believe is terribly unfair criticism.  If Thomas could sue any media outlet for stating (correctly) that he is a perjurer and a sex offender under the laws of a Republican-friendly jurisdiction (say, Alabama), what would happen?  Unlike the facts in Sullivan (the Court noted that the Times's Alabama circulation was 394), in this Internet era all media are readily available in every state.  They are therefore subject to defamation suits in every state.  Therefore, if Sullivan were overturned, the free press would be free only to the extent permitted by the most redneck truth-denying white-supremacist state in the country.  Like Alabama.

Or a state could establish a bounty system for private citizens to sue any media outlet that publishes anything that makes them feel “uncomfortable.” 

Far-fetched?

It's as inconceivable as a defeated President (who also called for overruling Sullivan) inciting a mob to attack the Capitol to overturn a democratic election.  That happened, and for as long as we have the freedom to speak regardless of what Southern white supremacists say, you can read all about it.

But back to our fellow white men fat and happy in their smoking jackets.  Maybe the new Republican oligarchy won't lead to your bleeding to death following, say, an illegal abortion, or being shot by a cop because you were Black and so was the cellphone in your hand, but it might put a bullet through the free and independent press that at least sometimes will tell you the truth about your white male overlords.  

You'll be in the same position as the schoolchildren in Tennessee who have lost the right to learn about the Holocaust.  Or American slavery.  Or the role of vaccines in preventing infectious disease.  Or really anything at all.

UPDATE January 30, 2022 1200.

The sun is out.

So is Margaret Sullivan's latest warning:

But perhaps most potentially consequential is Palin’s suit against the Times over a 2017 editorial that inaccurately drew a connection between her political rhetoric and the shooting that gravely injured then-congresswoman Gabby Giffords and killed six others in 2011. ...

It’s not inconceivable that Palin v. Times could make its way to the Supreme Court. If it does, an unfulfilled promise of T---- — that he would “open up” the libel laws — might come to pass. Most legal experts scoffed when T----, both as candidate and president, declared that he wanted to make it easier for aggrieved public officials, such as himself, to sue news organizations and “win lots of money.”

Despite his bluster, the legal foundation on which those laws are built is still standing. That’s the 1964 Supreme Court ruling in New York Times Co. v. Sullivan that gives significant protections to news organizations when they are sued by public figures, requiring that plaintiffs prove “actual malice” or “reckless disregard” for the truth — in other words, that they published information knowing full well that it was false and proceeding anyway. The Times’s swift correction of its mistake strongly suggests there was no reckless disregard for the truth; just sloppy editing and poor judgment.

But, in today’s fraught atmosphere, it’s an open question whether judges and juries will see it that way.

“It seems like a sure bet that the press-friendly standard for libel the Times v. Sullivan case established is in for a serious challenge,” said Nicholas Lemann ['76], a professor at Columbia Journalism School and staff writer for the New Yorker magazine.

After all, as Lemann noted in an email to me, the current Supreme Court already “has shown that it is eager to revisit, and possibly reverse, the great liberal victories of the 1960s and 70s,” and Justices Neil M. Gorsuch and Clarence Thomas both have publicly said they would like to reconsider Times v. Sullivan.

The lowest point in New York Times history: when they let a Republican flack round up 14 FLG voters and passed them off as "independents"

 By A.J. Liebling
Meta-content Generator

Things are looking bleak for Biden, at least according to genius bloviators on cable news and op-ed pages.

But are they really?  Let's take a look at a recent example purporting to share the hopes, dreams, and fears of 14 supposedly “independent” voters jabbering away in a “focus group.”

The headline wasn't promising:

That's not good.  If 14 mainstream independent-minded voters feel this way, that's a very bad, albeit not statistically-significant, sampling of mainstream opinion.

So what do we know about these “independent” voters?  For starters,

One independent voter in the Times group

The focus group was made up of people who had voted at least once for President Barack Obama and at least once for President Donald Trump.

Let's just stop there. We are being asked to take seriously the political opinions of 14 people who voted for an obviously demented and proudly ignorant, bigoted, and corrupt Russian-owned rapist.

Your correspondent would like to make sure that this point is not overlooked.

We are being asked to take seriously the political opinions of 14 people who voted for an obviously demented and proudly ignorant, bigoted, and corrupt Russian-owned rapist.

That's better. 

Also, we are supposed to accept that the views of 14 people who voted for an obviously demented and proudly ignorant, bigoted, and corrupt Russian-owned rapist are somehow representative of a broad middle ground of “independent” voters.

He seems quite representative

Who persuaded the Times editors that this assemblage of angry bigots constituted a representative sample of the great middle ground of the American polity?   It must have been someone whose reputation for political independence and integrity is beyond reproach. No way the Times would rely on a Republican hack who cohabits with the Republican Minority Leader of the House and 1/6 liar and hyperpartisan collaborator Kevin McCarthy, right?

Um...

with guidance from Times Opinion, Mr. [Frank] Luntz chose the participants and led this discussion. (Times Opinion paid him for the work, and he has done similar work over the years for political candidates and partisan groups.) 

This Frank Luntz? 

Frank Luntz is a polling expert and consultant who often works for Republicans. He has also worked as an analyst for Fox News and CBS News and frequently failed to disclose that he had worked for politicians he discussed. 

What else do we know about this jamoke?

What did this independent voter think?

House Minority Leader Kevin McCarthy (R-Calif.) confirmed on Tuesday he rented a room from GOP pollster Frank Luntz during the coronavirus pandemic, news that was first reported by Fox News host Tucker Carlson the night before.

"I didn't know how this was controversial," McCarthy said on "Fox and Friends." "Frank has been a friend of mine for more than 30 years. I met him with Newt Gingrich back when they were working on the Contract with America," he added, referring to the former GOP Speaker from Georgia.

He could room with Matt Gaetz and Alan Dershowitz for all we care, but that wouldn't give us much confidence in the unbiased judgment of “GOP pollster Frank Luntz.” Burying his decades of bag carrying for Republicans as working for “partisan groups” doesn't give us much confidence in the judgment of Times Opinion editors either.

Maybe the Times was unaware of Luntz's reputation, because learning the facts would have required about 0.01 seconds of searching on any search engine:

So what did a sample of 14 far-right extremists hand-picked by a lifelong Republican hatchet man have to say? If you guessed a bunch of crap they heard on Fox Noise, you win a dream date with Chicken Fried Steak and Gravy Tucker Carlson's hot green M&M.  Here's a typically coherent perspective on a pandemic covered up by the Tangerine-Faced Grifter they all voted for:

He doesn't care about a disease that claimed over 3,000 lives yesterday alone.  Lest you think that there might be some value in asking Jules why he wants to junk two of the three most effective measures to stop the reign of suffering and death, well,

As is customary in focus groups, our role as moderators was not to argue with or fact-check the speakers, and some participants expressed opinions not rooted in facts.

That of course is utter bollocks. Focus groups are always probing the basis for a speaker's statement, especially when it is bats**t crazy, but if you're the New York Times, you get to make up your own rules. Or have a Republican flack dictate them to you.

The Times could have hired a nonpartisan polling firm or political science department to bring together real undecided voters, drawn perhaps from the one-third of the electorate that didn't vote for anyone in 2020.   But that would have required more work than hitting the no. 1 favorite on your Republican quote machine list.

Or it could have assembled a focus group from the 57% of the electorate fearful about the future of our democracy as Dan Froomkin has suggested.

Lest you think that we're the only curmudgeons daring to question the integrity of this particular focus group and the process that generated it, here's Eric Boehlert and Mehdi Hasan weighing in:

“independents” in a Frank Luntz focus group are….Republicans

— Eric Boehlert (@EricBoehlert) January 21, 2022

How did she get into the independent voter focus group?

Just one last tip for you political junkies out there.  If you're trying to figure out how Biden is perceived by independent voters, don't ask 14 people who voted for an obviously demented and proudly ignorant, bigoted, and corrupt Russian-owned rapist.  

And don't ask Kevin McCarthy's roommate to convene a nonpartisan focus group.

Finally, at the risk of repeating ourselves, don't ask 14 people who voted for an obviously demented and proudly ignorant, bigoted, and corrupt Russian-owned rapist.

An inconvenient truth for our "progressive" friends

By Isidore F. Stone
Politics Editor

As predicted in these pages last week, the Supreme Court on Thursday authorized the most dramatic expansion of the federal death penalty in U.S. history when its six bent Republican members hiding behind a cowardly unsigned opinion held that an agency charged by Congress with protecting workplace health and safety could not in fact require employers to protect the health and safety of their employees in a time when COVID has already claimed 850,000 lives and continues to kill off Americans at the rate of 2,000 per day.

We'll save the deconstruction of the Court's brazenly political and unprincipled opinion to others (like the dissenters) and limit ourselves to assigning blame.

Thank you Jill Stein and her backers!

The elephant's share of the responsibility belongs of course to the Republican reactionary-industrial complex, which built an empire of bulls***t in the service of its one key goal: installing a government that has as its sole end the protection of the interests of rich reactionary white men.  As part of that goal, it has propagandized for, essentially, ever that government has no role to play in making life better for anyone who is not rich, white, and male.  Even more remarkably, it has mobilized white racism to ensure that those who are not rich and even not male forget all that and just focus on the white privilege bit.

But this is not a piece about reaching out to these angry racists, which has proven to be a fool's errand, no matter how many fools the New York Times dispatches to jerkwater diners.  This is about pointing the finger at another but-for cause of the collapse of the Supreme Court.  

Of the six unprincipled Republican a**holes who condemned thousands of American workers to an early and unnecessary death, five (excluding Long Dong Thomas) were appointed by Republican Presidents who owed their election to the failure of progressives to support the Democratic candidate.

In 2000, demented Jew hating spoiler candidate Ralph Nader siphoned off enough votes from Al Gore to give the Presidency (maybe – we'll never know for sure because the bent Supreme Court of that era stopped the Florida recount) to George W. Bush.  He duly nominated two unprincipled a**holes: John Roberts '76, who came to W.'s attention for his role in persuading the Court to stop the Florida recount, and Sullen Sam Alito, whose 100-octane white resentment has provided the fuel for the current Court's firebombing of the Federal Government.

Here are the results for Florida and New Hampshire for W., Al Gore, and the Demented Jew Hater left to right:

As Cecily Strong would say, do the math!  Had the 97,488 idiots who voted for Nader in Florida (or their equally wrong-headed 22,198 coreligionists in New Hampshire) voted instead for Al Gore, there would be no Chief Justice John Roberts or Justice Sullen Sam Alito.  And no majority for letting a pandemic rip through America's workplaces.

In 2016, demented but possibly not Jew hating spoiler candidate Jill Stein performed the same function for the Former Loser Grifter, allowing the FLG to eke out victories in Pennsylvania, Michigan, and Wisconsin.

For those of you with short memories, here's a little reminder from CNN:

In each case, had everyone who voted for Jill Stein instead voted for Hillary Clinton, Hillary would have won those states' Electoral Votes and the election.  There would be no Justice Neil “We don't need no stinkin' masks” Gorsuch, no Justice Brett ”This underwear is locked” Kavanaugh and no Justice Amy Coney Stepford Barrett.  And there would have been three principled Justices who one hopes would have decided the vaccine-or-test rule on its merits, and upheld it.

It's no answer to say, as some research suggests, that the absence of Nader or Stein would not have elected the Democrat because those voters might have just stayed home.  This is why politics is not a science.  The point not what these allegedly progressive voters might have done; it's what they should have done.

And had they done the right thing and gone to the polls and voted for the Democrat who had a chance of winning, American workers wouldn't be in the crisis they're in today.

We're old so we remember a lot of blah blah from lefties claiming there was no real difference between Gore and Bush, or between Clinton and the Former Loser Grifter.  We'd like to introduce you to a pandemic that begs to differ.

Which brings us to today.  With our democracy hanging by a thread, the conventional wisdom is that 2022 will be a debacle for the Democrats because ... well, there are lots of reasons.  Generally people aren't too chipper during a raging pandemic. Parts, but by no means all, of the Democratic agenda have been stalled by the Supreme Court, solid Republican opposition, and two d**kish Senators.

Here's a representative sample of said CW from that reliable dispenser thereof, The New York Times Washington Bureau:

Thank you Ralph Nader!

Democrats already anticipated a difficult midterm climate, given that the party in power historically loses seats during a president’s first term. But the party’s struggle to act on its biggest legislative priorities has rattled lawmakers and strategists, who fear their candidates will be left combating the perception that Democrats failed to deliver on President Biden’s central campaign promise of rebooting a broken Washington. 

We don't recall that being Biden's central campaign promise.  We recall him promising to bring honest law-abiding democratic government back after a four-year absence and trying hard to pass some progressive priorities.  But no matter, we'll accept as a premise that Democrats must turn out in these midterms, as they failed to do in 2010 and 2014, but did in 2018.

And while we're at it, they better turn out for state governor races in places like Pennsylvania and Florida if there is to be any hope of keeping the Republican coup d'etat at bay.

Already we're hearing from our friends on the left that their manifold disappointments with the Biden Administration, some of which are actually real and fair, might lead them to sit this one out:

The presumption seems to be that come election time, voters owe the Democrats their support, rather than Democrats owing voters the promised policies that improve people’s lives. Democrats also seem to believe that democratic institutions unto themselves — in absence of policy follow-through — will automatically generate positive political outcomes for their party. The idea is that people will vote harder, because they have to, given the alternative.

The national elections of 2010, 2014, and 2016 — as well as Virginia’s 2021 election — prove the opposite. They show that when a ruling party so obviously sides with its corporate sponsors, voters are perfectly willing to stay home or use those democratic institutions to throw that party out of office — even if that means electing an even worse set of villains. 

The author is clever enough to write his screed as descriptive, not as a recommendation, but he seems satisfied enough with the result (electing villains). We're not going to identify the writer because we're not here to rubbish some random rich screenwriter/crank. We're just providing an example of progressive “thinking” that if followed will lead to a generation or more of legal oligarchy. (Their answer is apparently that's what we have now, but we don't recall the Supreme Court from 1936 to 2000 to be invariably devoted to the ruling class.) 

We would never suggest that progressive Democrats follow Mark “Lumpy” Penn or other empty Third Way gasbags and abandon their principles.  Of course they should fight for better Democratic candidates than hedge fund handmaidens like Terry McAuliffe.

But when Election Day approaches and the choice is between a Democrat, good or mediocre, or a Republican insurrectionist, we have an inconvenient truth to share with our progressive friends:

Regardless of the imperfections of the Democrats as a group or individually, if you do anything else besides show up and vote Democratic, you are consigning you and those you care about to a tyrannical regime and in a time of pandemic perhaps even worse. 

We understand that the left doesn't like to hear that.  But just because a fact is unpleasant doesn't mean it's not true.  

If you think that staying home and “electing a worse set of villains” is an acceptable response to imperfect Democratic candidates and policies then, to borrow a phrase from a recent movie (written by our polemicist quoted earlier), you better look up.  The extinction event is only ten months away.

Dr. Gorsuch, with whom Drs. Fine, Howard, and Fine joins, delivered the opinion of the Court

By Scott V. Sandford, Justice Correspondent with
Vincent Boom-Batz, M.D., Medicine Correspondent

You might think that after 825,000 deaths in less than two years, and with daily new cases and COVID deaths reaching these levels

the one thing that would unite Americans and their government would be the unquestioned dire need to combat the spread of COVID with every effective tool at the command of the United States.

But if you thought that, you probably also thought that your fellow Americans would never elect a depraved corrupt ignorant Russian-owned bigot with no experience, wisdom, judgment, or ethical compass as President.

And here's a fun fact: that election may lead to crippling our COVID response, thanks in large part to the three mediocre extremists the Former Loser Grifter shoehorned on to the court, aided and abetted by virtually every Republican Senator.

The great Eric Boehlert noted the juxtaposition on the front page of today's New York Times:

Kinda says it all pic.twitter.com/aUArWd6Kyb

— Eric Boehlert (@EricBoehlert) January 8, 2022

Almost all.  

So what happened?

The Supreme Court in its wisdom was considering whether the Biden Administration had the power to protect workers (and everyone else) from dying from COVID by adopting a rule requiring large businesses, as part of their virtually unlimited power to boss their workers around, to either get a safe, effective COVID vaccine or wear a mask and get tested weekly.

Who could object to a simple, virtually cost-free common-sense step to protect workers and all of us from the profound suffering and death of what has become the worst pandemic in American history?

Say hello to Neil Gorsuch, the mediocre Republican scion of mediocre Republican wardheeler Anne Gorsuch, who occupies the seat that Merrick Garland was nominated for, but never got a hearing or a vote thanks to every Republican Senator: 

During oral arguments, made by two right wing attorneys remotely because both have COVID, Gorsuch compared the deadly coronavirus which has killed over 850,000 Americans, to the seasonal flu.

Justice Gorsuch told the Court the flu kills “hundreds, thousands of people every year.”

According to the CDC, the flu kills 12,000 to 52,000 annually. COVID-19 to date has killed over 850,000 in the U.S., including 385,00[0] in 2020.

It’s clear Gorsuch does not understand how highly transmissible the coronavirus is, nor how deadly it is – not to even begin to mention long COVID, or that millions of Americans are ineligible for age or health reasons to get vaccinated against COVID.

Social media users erupted in anger and frustration.

The Economist’s Supreme Court reporter Steven Mazie reveals Justice Goursuch actually laughed when the U.S. Solicitor General called the coronavirus pandemic “terrible.”

And if you thought that was the full extent of Dr. Gorsuch's misunderstanding of public health, then hold my beer while I sneeze on you:

Justice Gorsuch wore no mask during oral argument yesterday, the only justice to openly defy the rules, on a day they were considering Covid cases. After all, who’s going to make him? The focus on “me” over “we” is emblematic of what is wrong with America. https://t.co/GR1rCHuRLS

— Barb McQuade (@BarbMcQuade) January 8, 2022

That's University of Michigan Law Professor (and former U.S. Attorney) Barbara McQuade, not some Twitter rando.

Sounds like Dr. Gorsuch got his degree from the Tucker Carlson School of Medicine. And that's kinda the problem with the Supreme Court second-guessing decisions by experts in a time of pandemic: they don't know jack s*** about what they're talking about.

If they wanted to get some idea of the importance that government agencies attach to controlling COVID in the workplace, they might consult – their own website:

Their own rules didn't prevent the bent Republican Justices from whining about government overreach:

A majority of justices seemed inclined to agree...that OSHA’s proposed action was beyond a federal agency’s powers.

Such a workplace requirement “sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to … rather than agency by agency, the federal government, the executive branch acting alone,” said Chief Justice John G. Roberts Jr.

The states?  Sure, that would work because as every one knows, viruses cannot spread across state lines.  We're beginning to wonder if our classmate's penchant for hitting his bong between classes in Leverett House has done lasting brain damage.

As for the argument that the Executive lacked statutory authority, you'll be shocked to learn that such a position is, to use the technical legal terminology, utter horsesh*t:

Congress has directed that OSHA “shall” issue an “emergency temporary standard” if the agency “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. 655(c)(1). 

That's from the Solicitor General's brief.

The rule also follows well-documented cases of COVID sweeping through workplaces, causing death and disease not only to the workers but to their communities, as OSHA itself pointed out to all who cared to listen:

Unsurprisingly, OSHA documented “clusters, out-breaks, and other occurrences of workplace COVID-19 cases that government agencies, researchers, and journalists have described.” Ibid.; see...extensive empirical studies by state agencies and researchers. Indeed, one state health department concluded that “[m]ore than three quarters of outbreaks” in that State as of August 2021 “were associated with workplaces.”...Because “[t]he science of transmission does not vary by industry or by type of workplace,” moreover, OSHA determined that transmission would “occur in diverse workplaces all across the country.” ...Substantial evidence thus supports OSHA’s conclusion that “most employees who work in the presence of other people (e.g., co-workers, customers, visitors) need to be protected” by an ETS from the grave danger of COVID-19 spread.... The Standard protects against that grave danger.

As of this date, it appears that the transportation and health care segments of our economy are nearing collapse because too many workers are sick.  Here's tonight's Boston Globe:

 

That might also be of interest in considering the reasonableness of the OSHA vaccine-or-test rule. 

And, speaking of judicial fact-finding, John Roberts '76 implied he was willing to destroy a major lifesaving government initiative in a time of pandemic because of, wait for it, a Tweet: 

"It seems to me that it’s that the government is trying to work across the waterfront and it’s just going agency by agency. I mean, this has been referred to, the approach, as a work-around, and I’m wondering what it is you’re trying to work around.” The “work-around” reference was to a tweet describing the mandate in that way, with regard to the state’s role in public health, that was retweeted by Ron Klain, Joe Biden’s chief of staff—a social-media click that has become a cause célèbre on the right.

There was more nonsense in the Republican Justices' questions, including Sullen Sam Alito's desperate effort to claim the vaccines aren't safe, a fear that supposedly Congress has given the Executive too much power to protect workers from pandemic, and the claim, knocked down by Justice Kagan, that because people get COVID outside the workplace, OSHA couldn't protect workers from workplace exposure.  (That would be true of every workplace risk, including being crushed by beef carcasses).  We can't stomach too much more of this, so you should listen to the Strict Scrutiny podcast for yourself.

But the error underlying the threat to Executive action to try to keep the COVID death toll from reaching 1,000,000 is the Supreme Court's arrogant willingness to substitute its own facts and judgment for reality.  One of the worst examples of that arrogance is Buck v. Bell, 274 U.S. 200 (1927), in which the Court said that states could forcibly sterilize people they deemed inferior.

Great Bostonian, and, like John “the Bongmaster” Roberts '76, Harvard man Oliver Wendell Holmes reasoned:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes....Three generations of imbeciles are enough. 

Drs. Gorsuch, Roberts, and Alito,
ready to operate

But a century of Supreme Court medical malpractice is manifestly more than enough.

Nullifying the Executive's ability to exercise its statutory duty to protect workers from suffering and death in a time of pandemic, whether due to public health principles pulled from the blowhole of Sean Hannity or to an improper lust to cripple the power of the federal government to exercise its enumerated powers for the public good brings to mind Justice Robert Jackson's famous warning: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Also not a suicide pact is the legislation enacted by Congress, which may be changed by Congress at any time and for any reason, now codified at 28 U.S.C. § 1:

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices ....

If the workplace safety rule in invalidated and several hundred thousands more die unnecessarily, maybe then we can revisit that statute.  More likely, urgent remedial action will be delayed by specious claims of “court packing” by another three generations of imbeciles.

From the Archives: New Year's Days in Parlous Times

By Aula Minerva
Spy Archivist

New Year's Day 2021 seemed to offer reasons for hope.  Effective vaccines were on the way.  The crooked depraved Russian-owned bigot who had misruled America for the previous four years was about to be replaced by a decent honorable Democrat supported by a (marginally) Democratic Congress.

How'd that turn out?

If you don't remember, we can't help you.

Let's just say we tread upon a New Year with COVID still epidemic, the United States Government under continued attack by fascist insurrectionists d/b/a the Republican Party, the catastrophe of global warming upon us, and without Betty White.

Not good.

That's why we went back in time to see if past New Year's Days in other times of crisis could offer any words of hope or succor.  Twenty years ago, New  Year's Day 2002, the nation was still reeling from what was then an unendurable loss of human life in the aftermath of the 9/11 terror attacks.  That loss was less than half of one percent of the COVID death toll, but at the time it was overwhelming.

No wonder The New York Times offered words of hope:

The shock of a day like Sept. 11 makes the conventions of our lives look merely conventional....But any convention grown old enough acquires a meaning that's as hard to deny as it is to explain.

Hence Jan. 1, a day as melancholy as it is hopeful, completely secular and yet committed by many of us, even ironically, to an ideal of renewal that feels almost spiritual....What we commit ourselves to on the first of the year isn't a sudden increase in talent or intelligence or native beauty. It's an increase in what William Cobbett, the great 19th-century journalist, called ''exertion,'' the best application of the abilities we already have.

How'd that turn out? A hint could be found on page one of that day's Times, and it wasn't good:

The story led off with an anecdote that revealed W.'s motivation in all of the post 9/11 excitement: to make himself look big and strong, and not the clueless weakling who continued to read My Pet Goat after learning the U.S. had been attacked:

It was late on a Saturday, just days after the attacks on the World Trade Center and the Pentagon, when President Bush was ready to sign an order freezing the assets in the United States of suspected Islamic terrorist groups, the first showy financial strike against Al Qaeda. The order was to be announced, or so the plan went, the following Monday by Treasury Secretary Paul H. O'Neill. But the president suddenly had another idea.

Not much hope here

''I am about to sign this order,'' an aide recalled Mr. Bush saying. ''Why am I not announcing it?''

The staff scrambled, and by Monday morning it was the president, not Mr. O'Neill, who made the announcement, reinforcing the message that Mr. Bush would direct the war against terrorism on many fronts.

Whatever happened to the staff that scrambled so hard to project a false impression of confidence and resolve? Tune in MSNBC any weekday (except Christmas week when your host prefers to languish in St. Barts) at 5 p.m. and find out. Or check out Twitter and other congenial homes to anti-FLG gasbags. They're all there!

Further down, the story dropped hints of the lawless and pointless violence and human rights abuses that would come to represent the core of the Bush/Cheney “Global War on Terrorism:” 

His most assertive action was a November order establishing military tribunals for accused terrorists, but Mr. Bush has also moved to keep presidential papers secret and permitted sweeping government efforts to investigate anyone suspected of terrorism. To help in those investigations, he expanded government wiretapping and allowed the monitoring of communications between some people in federal custody and their lawyers. 

And that was just the chips and salsa at the banquet of pointless bloodshed that led to decades of useless violent war and grotesque torture in Iraq and Afghanistan. 

What can we say, not much comfort from 2002.

Let's turn the clock back a couple of generations to New Year's Day 1942, when the nation had to confront the devastating attack on Pearl Harbor and the reality of war on two fronts against the two most powerful and highly-militarized powers ever seen.   This page one greeted hung over New Yorkers on that day:

That Gen. MacArthur had botched the defense of the Philippines by allowing his air force to be destroyed on the ground after Pearl Harbor would not become known for many years.  Those gay throngs in Times Square would be fed into the maw of World War II, and more than 400,000 never saw New Year's Day 1946.  On the plus side, you got all this for three cents, or 1% of the newsstand price today.  Bad news for Biden!

At least Bloomingdale's was trying to cheer New Yorkers up:

Nice thoughts, but another New York department store knew that nothing was better for morale than a white sale:

And the Times found reasons for cheer:

That's actually not bad, although the bit about being a united people seems strikingly inapposite to our current plight.  (And, spoiler alert, it worked.)

One more New Year's Day, from 1862, when the United States had been sundered by insurrection and treason (sound familiar?).  Worse yet, with disloyal former U.S. Army Generals like Robert E. Lee leading the Rebels, the Union Army had been routed at Bull Run and cooped up in Washington.  The United States knew that defeating the insurrectionists would be a terrible and bloody affair.  

In any event, the Times lead story was full of patriotic good cheer:

And the good news didn't stop with the immense armament secured by the Union.  There was this dispatch, sure to gladden the hearts of the good citizens of Binghamton, N.Y.:

The outcome perhaps generated fewer happy feelings:

During its service the regiment lost by death, killed in action, 4 officers, 49 enlisted men; of wounds received in action, 2 officers, 52 enlisted men; of disease and other causes, 1 officer, 158 enlisted men; total, 7 officers, 259 enlisted men; aggregate, 266; of whom 13 enlisted men died in the hands of the enemy.

There's always a bill to be paid.

But sure enough the Times editorial writers found reasons to wish loyal Americans a Happy New Year:

A cowardly old fool and a Cabinet of knaves?  That's pretty sharp.  Too bad the Times editorial page gave up telling it like it is sometime between 1862 and 2017.

As for the clear purpose and fixed aim, we'll bet that the Times's wordsmith had no idea of the carnage yet to come, not to mention the continuing struggle down the centuries to attain the aims of the Civil War: national unity and racial justice.

So one thing we've learned from the New Year's Days of 2002, 1942, and 1862: for all the hope and good cheer of New Year's Day, the road ahead is at best long and hard.  

Just when we were about to leave you with this gloomy conclusion, we heard from our old friend Barack Obama.  He's not having any of it:

I’m hopeful about 2022. This year will undoubtedly have its challenges, just like 2021 did. But we’ve made it this far—and I still believe we can build a brighter future together. Happy New Year!

— Barack Obama (@BarackObama) January 1, 2022

If Barack Obama tells us to look on the sunny side, who are we to argue?  Happy New Year.