Justices in Trumpland

Professor Campos makes an important distinction. To say that courts, including the Supreme Court, should be apolitical is nonsensical. Any legal ideology or reasoning is inherently political in a sense. As Campos puts it, "any non-trivial appellate court case requires a court to enforce a contestable vision of what the law is — that is, a legal ideology." If you don't like the ruling you'll likely say it's political, if you do like it you'll probably say that it's just sound jurisprudence.

 

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

As Serwer shows, the ruling depends not on a defensible reading of the Occupational Safety and Health Act, but on accepting the current conservative zeitgeist about the Covid-19 vaccine and vaccines in general. How soon we forget, but until Covid-19 came along Republicans, including Ted Cruz, were firmly pro-vaccination and many supported vaccine mandates. "n 2015, Senator Rand Paul of Kentucky tweeted a photo of himself getting a booster shot to rebut liberal media bias." But now, thanks to Faux News and other agitprop, being anti-vax is a symbol of conservative identity, and Paul is refusing to get the Covid-19 shot. 

The idea that vaccination is unsafe or ineffective, and that vaccine mandates are a harbinger of state tyranny, is now a part of conservative political identity, which makes the right-wing justices see the OSHA mandate as unlawful no matter what the law actually says. As Justice Elena Kagan put it during the oral argument, “I don’t know about that kind of doctrine in the OSH Act or any place else in administrative law, that because you can say that, you know, somebody would 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, the conservative justices, typically so insistent on strict textual interpretation, had to get philosophical. Because what they know, as good Fox News–watching conservatives, 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 unlawful.

 

Yes, they're disproportionately killing their own. But I don't gloat over that. This is a profound sickness.