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.