eyes wide shut

The U.S. Supreme Court, by a strictly ideological party-line 6-3 vote, yesterday stayed the Biden Administrations “vaccinate or test” policy in complete disregard for the health and safety of workers. Fortunately, Justices Breyer, Sotomayor, and Kagan, wrote a powerful dissent calling out the “judicial activism” of the six who issued the (unsigned) opinion (emphases added):

Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized?  Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?  Here, an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed. The agency has thoroughly evaluated the risks that the disease poses to workers across all sectors of the economy. It has considered the extent to which various policies will mitigate those risks, and the costs those policies will entail.  It has landed on an approach that encourages vaccination, but allows employers to use masking and testing instead. It has meticulously explained why it has reached its conclusions.  And in doing all this, it has acted within the four corners of its statutory authorization—or actually here, its statutory mandate.  OSHA, that is, has responded in the way necessary to alleviate the “grave danger” that workplace exposure to the “new hazard” of  COVID–19 poses to employees across the Nation.  29 U.S.C. §655(c)(1).  The agency’s Standard is informed by a half century of experience and expertise in handling workplace health and safety issues. The Standard also has the virtue of political accountability, for OSHA is responsible to the President, and the President is responsible to—and can be held to account by—the American public.  And then, there is this Court.  Its Members are elected by, and accountable to, no one.  And we “lack[] the background, competence, and expertise to assess” workplace health and safety issues. South Bay United Pentecostal Church, 590 U. S., at ___ (opinion of ROBERTS, C. J.) (slip op., at 2). When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions.  Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible.  Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.