Stayin’ Alive: Judges in Trumpland

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Professor Campos makes an important distinction. To say that the courts, including the Supreme Court, must be apolitical is nonsense. Any ideology or legal reasoning is inherently political in a sense. As Campos puts it, “any non-trivial appellate court case requires a court to enforce a dubious view of what the law is, that is, a legal ideology.” If you don’t like the ruling, you’ll probably say it’s political, if you like it, you’ll probably say it’s just solid case law.

However, a partisan court is a different matter. He bases his decision not on a consistent application of a legal ideology, but on which party will benefit from it. That is the Supreme Court that we have now, as Adam Server convincingly argues based on recent ruling that OSHA cannot impose a vaccination mandate on large employers. (Campos uses the same example but Serwer’s exposition is more complete).

As Serwer shows, the ruling does not depend on a defensible reading of the Occupational Health and Safety Law, but on accepting the current conservative spirit about the Covid-19 vaccine and vaccines in general. How soon we forget, but until Covid-19 came along, Republicans, including Ted Cruz, were strongly pro-vaccination with many supporting vaccine mandates. n 2015, Senator Rand Paul of Kentucky tweeted a picture of himself get a booster shot to refute liberal media bias.” But now, thanks to Faux News and other political propaganda, being anti-vaccine is a symbol of conservative identity, and Paul refuses to get the Covid-19 vaccine.

The idea that vaccination is unsafe or ineffective, and that vaccine mandates are a harbinger of state tyranny, is now part of conservative political identity, causing right-wing judges to view the OSHA mandate as unlawful without matter what the law says. As Judge Elena Kagan said during oral argument: “I’m not aware of that kind of doctrine in the OSH Act or anywhere else in administrative law, that because someone can be said to prefer not to be regulated, the agency loses its power.”

That, unfortunately, gets to the heart of the matter. But because the text of the OSH Act is so clear, conservative judges, typically so insistent on strict textual interpretation, had to get philosophical. Because what they know, like good conservatives who watch Fox News, is that they don’t like the mandate. They understand that their fellow conservatives would prefer not to be regulated in this way. And therefore the mandate must be illegal.

Yes, they are disproportionately killing their own. But I don’t rejoice in that. This is a deep disease.

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