The Supreme Court is leading a Christian conservative revolution

“Justice Amy Coney Barrett had been a member of the Supreme Court for less than a month when she cast the key vote in one of the most consequential religion cases of the past century.
Months earlier, when the seat she would fill was still held by Justice Ruth Bader Ginsburg, the Court had handed down a series of 5-4 decisions establishing that churches and other houses of worship must comply with state occupancy limits and other rules imposed upon them to slow the spread of Covid-19.

As Chief Justice John Roberts, the only Republican appointee to join these decisions, explained in South Bay United Pentecostal Church v. Newsom (2020), “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States.” And these officials’ decisions “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

But this sort of judicial humility no longer enjoyed majority support on the Court once Barrett’s confirmation gave GOP justices a 6-3 supermajority. Twenty-nine days after Barrett became Justice Barrett, she united with her fellow Trump appointees and two other hardline conservative justices in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a decision striking down the very sort of occupancy limits that the Court permitted in South Bay. The upshot of this decision is that the public’s interest in controlling a deadly disease must give way to the wishes of certain religious litigants.”

“Before Roman Catholic Diocese, religious objectors typically had to follow a “neutral law of general applicability” — meaning that these objectors must obey the same laws that everyone else must follow. Roman Catholic Diocese technically did not abolish this rule, but it redefined what constitutes a “neutral law of general applicability” so narrowly that nearly any religious conservative with a clever lawyer can expect to prevail in a lawsuit.

That decision is part of a much bigger pattern. Since the Court’s Republican majority became a supermajority, the Court has treated religion cases as its highest priority.”

“Several of the justices are openly hostile to the very idea that the Constitution imposes limits on the government’s ability to advance one faith over others. At a recent oral argument, for example, Justice Neil Gorsuch derisively referred to the “so-called separation of . . . church and state.”

Indeed, it appears likely that the Court may even require the government to subsidize religion, at least in certain circumstances.

At December’s oral arguments in Carson v. Makin, for example, the Court considered a Maine program that provides tuition vouchers to some students, which they can use to pay for education at a secular private school when there’s no public school nearby. Though the state says it wishes to remain “neutral and silent” on matters of religion and not allow its vouchers to go to private religious schools, many of the justices appeared to view this kind of neutrality as unlawful. “Discriminating against all religions,” Justice Brett Kavanaugh suggested, is itself a form of anti-religious discrimination that violates his conception of the Constitution.

For many decades, the Court held the opposite view. As the Court held in Everson v. Board of Education (1947), “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

But Everson’s rule is now dead. And the Court appears likely to require secular taxpayers to pay for religious education, at least under some circumstances.”

Stephen Breyer Tried to Compromise On An Increasingly Uncompromising Supreme Court

“Breyer prizes compromise, and as the court has become more ideologically polarized, he’s tried to find points of common ground with the conservative justices, even on relatively high-profile issues, like religious liberty. That pragmatic streak was on display in 2005, when he served as the pivotal vote in two separate cases about public displays of the Ten Commandments. In one of the cases, he voted with the conservatives to uphold the display; in the other, he voted with the liberals to strike it down. Over the years, he joined the conservatives in a variety of other important religion cases, including a dispute over a 40-foot cross that was displayed on public property in Maryland and a fight over whether Missouri could exclude a church from a public grant program for playground resurfacing.
In those cases, he often stressed the need to avoid religious disagreements — which sometimes led to outcomes that upset liberals. In the 2005 case where he voted to uphold a Ten Commandments display in Texas, for instance, he wrote that although it was a “borderline case,” ruling that it was unconstitutional could lead to the removal of similar displays around the country and “thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

And his breaks with his liberal colleagues haven’t been on religion alone. According to a recent analysis by political scientists Lee Epstein, Andrew Martin and Kevin Quinn, Breyer cast the lowest percentage of liberal votes of any of the three Democratic appointees who served with him. Epstein, Martin and Quinn found that most of those disagreements were in the area of criminal procedure, particularly in cases related to search and seizure.

Of course, Breyer has been an outspoken liberal voice on other issues, including reproductive rights and the death penalty.”

“Breyer plainly became concerned about the court’s reputation, particularly after Ginsburg died and was replaced by Justice Amy Coney Barrett, which gave the conservative majority even more power. He’s spent the years since then trying to convince Americans that the court was fundamentally a nonideological institution, even publishing a short book where he argued that the court — despite its clear conservative tilt — was not a political institution.

That commitment to preserving the judiciary’s nonpartisan image — and staying mostly in line with public opinion — put Breyer increasingly out of step with the court’s trajectory. This year’s term isn’t over yet, but at least some of the Supreme Court conservatives seem ready to veer sharply outside the mainstream on abortion, gun rights and other high-profile issues. Justice Sonia Sotomayor, meanwhile, shows no desire to make nice with the conservatives — in a recent dissent, she called the court’s decision to leave a highly restrictive Texas abortion law in place a “disaster” and a “grave disservice to women in Texas.”

In a 2020 interview, Breyer told reporter Dahlia Lithwick, “The best is the enemy of the good. … But if you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first.” That attitude seems unlikely to be especially popular at the Supreme Court going forward — among liberals or conservatives.”

In the Case That Blocked OSHA’s Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard

“Underlying that split is the question of whether and when COVID-19 counts as a workplace hazard, justifying regulation by the Occupational Safety and Health Administration (OSHA), as opposed to a general risk that Americans face throughout the day, which goes beyond that agency’s statutory mission. All of the justices agreed that OSHA does not have a general license to protect public health, and all of them agreed that the agency does have the power to address COVID-19 in the workplace. But while the dissenters were willing to let OSHA define that problem in general terms, justifying a broad solution covering 84 million employees, the majority thought the agency was obliged to be more specific and discriminating.”

“OSHA has previously issued regulations that addressed communicable diseases. In 1990, it issued a nonemergency standard dealing with bloodborne pathogens, and last June it published a COVID-19 ETS for the health care industry. But both of those rules aimed to protect employees who faced special hazards because of the nature of their work (handling blood samples and treating COVID-19 patients, respectively), and neither of them encouraged or required employers to make vaccination mandatory. That is something OSHA, which has existed for more than half a century, has never done before—a point that the justices emphasized during oral arguments last week and again in yesterday’s decision.
“OSHA has never before imposed such a mandate,” the Court notes. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here….The most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.”

In a joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argue that OSHA’s unprecedented rule is justified by the unprecedented threat that COVID-19 poses”

“Even as Breyer et al. emphasize the society-wide threat posed by COVID-19, they suggest the risk is especially acute in the workplace, where employees typically gather inside for eight hours a day. That basic fact, the dissenters argue, justifies OSHA’s broad approach, because the coronavirus “spreads mostly without regard to differences in occupation or industry.””

“More generally, the majority says, OSHA has failed to draw appropriate distinctions between different work situations that pose widely varying risks of virus transmission. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the Court says. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.””

“The majority nevertheless concedes that OSHA has the authority to address COVID-19 in certain contexts:

“Where the virus poses a special danger because of the particular features of
an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”””

What Progressives Get Wrong About Judicial Review

“Today’s liberal critics of judicial review make two principal claims, both of which Learned Hand made too. First, they say that judicial review is repugnant to democracy. To allow unelected judges to void the actions of democratically elected legislators, presidents, or governors, the argument goes, is to allow the judiciary to subvert the will of the majority. Second, these critics say, judicial review “wasn’t enumerated in the Constitution and isn’t inherent in the court as an institution,” as Bouie put it. Thus, the act of abolishing judicial review does not raise any constitutional concerns.
These liberal critics are right on the first count and wrong on the second. The judiciary is undoubtedly the least democratic branch of government. But that is by design. The role of the federal courts, as James Madison once put it, is to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” Lawmakers and presidents sometimes assume powers that they should not, and popular majorities sometimes support those power grabs. The judiciary is meant to stand in the way even if judicial review thwarts the will of such majorities. Indeed, the judiciary is meant to act as a check against the tyranny of such majorities.

What is more, contra Bouie, this authority is firmly located in the Constitution and fully inherent in the judicial branch. According to Article III, Section 1, “the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Framers and ratifiers of the Constitution understood the phrase “the judicial power” to include the power of federal judges to nullify legislative and executive acts that violate the Constitution, which is the power that we call judicial review.”

“An examination of American legal history reveals the solid constitutional foundations of judicial review. Take the 1787 Constitutional Convention in Philadelphia, where the document was drafted. Speaking on July 21, Luther Martin gave voice to the consensus view. “As to the constitutionality of laws,” Martin observed to his fellow delegates, “that point will come before the judges in their proper official character. In this character they will have a negative on the laws.” George Mason made the same point on the same day. Under the Constitution, he said, judges “could declare an unconstitutional law void.” Nobody at the convention disagreed with any of that.

This same understanding of “the judicial power” is also evident in the Framers’ debates about a proposal that did not make it into the final document. James Madison was foremost among those at the convention who thought that Congress should have the constitutional power to veto state laws. Madison had watched as various states, under the Articles of Confederation, erected tariffs and other costly impediments to interstate commerce (among other barriers to the economic and political harmony of the new nation). Madison wanted to see a congressional check put in place against such state actions.

The states “can pass laws which will accomplish their injurious objects before they can be…set aside by the national tribunals,” Madison told the convention on July 17. In other words, Madison worried that judicial review by the federal courts might take too long in such cases and therefore wanted Congress to be able to move even more quickly against especially dangerous state laws.

Gouverneur Morris spoke for the opposition to that proposal. “A law that ought to be negatived,” Morris replied, “will be set aside in the judiciary department.” Morris did not favor a congressional veto over state legislation because he thought the veto power of the federal courts—judicial review—would do the trick.

Morris beat Madison in that particular debate. The Constitution would not contain a congressional “negative” over state laws. But both sides in the debate did think—indeed, both sides simply took it for granted—that the federal courts would have the constitutional power to “set aside” unconstitutional laws. They all agreed that the federal courts would have the power of judicial review.”

“That same understanding of “the judicial power” is evident when you examine the records of the state ratifying conventions.”

There Is Nothing ‘Conservative’ About Letting Police Violate Our Rights

“what about the onslaught of frivolous suits that would come down against the police? That also misses the mark, particularly when considering that it is not possible to simply enter a federal courthouse and file a lawsuit because you’re mad at the cops. Before suing a government actor, a plaintiff must satisfy two conditions: that the public servant affirmatively violated someone’s constitutional rights, and that the violation of the rights is clearly established in prior case law. Without qualified immunity, a would-be litigant would still need to prove to a federal judge that his constitutional rights were infringed on. Qualified immunity is only the second part—the part that sends a victim searching for a perfect court precedent where another victim experienced a near-identical sort of misconduct.

It’s for that reason that the doctrine gives license to some disturbing behavior—the sort that should concern anyone who positions himself as a defender of responsible governance. An example: “The City Officers ought to have recognized that the alleged theft was morally wrong,” but the police “did not have clear notice that it violated the Fourth Amendment.” This is a real quote from a real decision from a real federal court—the U.S. Court of Appeals for the 9th Circuit—awarding qualified immunity to two government actors who we apparently cannot trust to know that stealing during a search warrant is unconstitutional unless there is some obscure court precedent saying so. I’d posit that most of the public has more faith in police to do their jobs with integrity. I certainly do.”

The Supreme Court can’t get its story straight on vaccines

“the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.

The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.

There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.

But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.

The NFIB case relies heavily on something known as the “major questions doctrine,” a judicially invented doctrine which the Court says places strict limits on a federal agency’s power to “exercise powers of vast economic and political significance.” As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to “84 million Americans” — quite understandably a matter of vast economic significance.

But, if this manufactured doctrine is legitimate, then it’s not at all clear why it doesn’t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more modest health workers’ rule “has effectively mandated vaccination for 10 million healthcare workers.” That’s still an awful lot of Americans!

What if the Biden administration had pushed out a rule requiring 20 million people to get vaccinated? Or 50 million? The Court does not tell us just how many millions of Americans must be impacted by a rule for it to count as a matter of “vast economic and political significance.” And it’s hard to draw a legally principled distinction between 10 million workers and 84 million.

Similarly, in NFIB, the Court notes that the agency which created the broad rule at issue in that case is the Occupational Safety and Health Administration (OSHA) which, as its name suggests, deals with health threats that arise in the workplace, and Covid-19 is not unique to the workplace. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the majority opinion notes.

But, as the three liberal justices point out in dissent, OSHA regulates threats that exist both inside and outside the workplace all the time, including “risks of fire, faulty electrical installations, and inadequate emergency exits.” It’s not at all clear why Covid-19 is any different. And the only explanation that the majority opinion gives — that a vaccination “cannot be undone at the end of the workday,” unlike the donning of fire-safety gear — applies with equal force to both the OSHA rule and the narrow health worker’s rule that the Court refused to block. Doctors’ vaccinations can’t be undone any more than an office worker’s can be.

The Court, in other words, appears unable to articulate a principled reason why some vaccination rules should stand and others should fall.”

“The opinions suggest that the Court will uphold rules that five of its members think are good ideas, and strike down rules that five of its members think are bad ideas.”

It was a great day in the Supreme Court for anyone who wants to bribe a lawmaker

“The case is Federal Election Commission v. Ted Cruz for Senate, and it involves a federal law intended to prevent campaign donors from putting money directly into the pockets of elected officials. Specifically, the law permits candidates to loan money to their own campaigns, but forbids the campaign from repaying more than $250,000 of that loan from funds raised after the election takes place.

Typically, federal law draws a sharp line between money donated to a campaign, which can only be spent on the election effort, and money given directly to a candidate, which is ordinarily not allowed. But loan repayments exist in a gray area between these two kinds of donations. Yes, money repaid to a candidate ostensibly just reimburses that candidate for money they fronted during the campaign. But any dollar given by donors to repay such loans still goes into the pocket of a former candidate who may very well be a powerful elected official by the time they receive the money.

Without a cap on loan repayments, elected officials with clever accountants could profit off of their donors. In 1998, for example, Rep. Grace Napolitano (D-CA) made a $150,000 loan to her campaign at 18 percent interest (though she later reduced that interest rate to 10 percent). By 2009, she’d reportedly raised $221,780 to repay that loan, meaning that she earned at least $71,000 in profits.

Thus, should this challenge to the repayment cap succeed — and it appears overwhelmingly likely to succeed — elected officials could potentially make enormous loans to their campaigns at high interest rates, and then use those loans as a vehicle to accept bribes from lobbyists and other donors who want to trade money for access to the official.”

Just how much is Trump’s judiciary sabotaging the Biden presidency?

“No one has ever elected Matthew Kacsmaryk to anything.

Kacsmaryk, whom former President Donald Trump appointed to the federal bench in 2019, was previously a lawyer for a Christian right law firm. He once claimed being transgender is a “mental disorder” and that gay people are “disordered.” He’s also one of the most powerful immigration officials in the country, having successfully wrested control of much of America’s border policy away from the man Americans elected president in 2020.

With the Supreme Court’s blessing, Kacsmaryk ordered President Joe Biden’s administration to reinstate Trump’s “Remain in Mexico” policy, which requires many asylum seekers who arrive at the United States’ southern border to stay in Mexico while they await a hearing.

Even if you ignore the moral implications of reinstating such a policy, there are good reasons to doubt that the policy is a good use of America’s limited border security resources. And Kacsmaryk’s decision is also unlawful for numerous reasons.

One of the most important reasons is that it upends the balance of power between the president and unelected judges. Reinstating the Remain in Mexico program requires the Mexican government’s cooperation — which means that Kacsmaryk ordered the United States to change its diplomatic stance toward Mexico. And that’s despite decades of warnings from the Supreme Court that judges should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”

Kacsmaryk’s decision, and the Supreme Court’s decision to stand with Kacsmaryk against President Joe Biden, is one of the most dramatic examples of the Republican-controlled federal judiciary’s many conflicts with America’s Democratic president. But it’s hardly an isolated incident.

In just four years as president, Trump remade the federal judiciary — all with a big assist from a Senate Republican leader willing to break any norm in order to ensure GOP control of the courts. Trump appointed a third of the Supreme Court and nearly a third of all active appeals court judges. He also peppered federal trial courts with conservative activists like Kacsmaryk, who are eager to overturn some of the most fundamental assumptions of US law.

Nearly one year into Biden’s time in office, the result hasn’t exactly been a bloodbath for his policies — in contrast to the seemingly never-ending array of lawsuits seeking to repeal Obamacare, no federal judge has yet tried to repeal Biden’s major legislative accomplishments such as the American Rescue Plan or the Infrastructure Investment and Jobs Act. But in two areas in particular, immigration and public health, the courts have been unusually aggressive.”

“if the Supreme Court wanted lower-court judges to stop ignoring precedents that permit President Biden to govern, it could intervene to stop them from doing so. Instead, it has rewarded many of the most aggressive conservative innovators within the judiciary.”

Don’t be fooled: The Supreme Court’s Texas abortion decision is a big defeat for Roe v. Wade

“On first glance, it would be easy to see the Supreme Court’s decision Friday in Whole Woman’s Health v. Jackson as a win for abortion rights. It would also be wrong.

More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.

The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch’s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.

The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they play in enforcing the law. The most important provisions of the law — the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so — will most likely remain in effect.

Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.

SB 8 was written for the very purpose of evading judicial review, and Jackson largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch’s opinion “leaves all manner of constitutional rights more vulnerable than ever before.” If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.”

“Normally, private plaintiffs can’t sue a state directly in federal court — but they can sue the state official tasked with enforcing an unconstitutional law. SB 8 seeks to exploit this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing the state’s anti-abortion law. Instead, the law may only be enforced through private lawsuits.

Such lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant — and there is no upper limit on this bounty.

The idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.”

“A federal court, in other words, isn’t allowed to block the most important parts of SB 8 — the part allowing “any person” to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.

So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.”

The stakes in the Supreme Court’s vaccine cases are even bigger than they seem

“Governments make choices that shape millions of lives. Workers and businesses are taxed to provide health care to the elderly and to the least fortunate. Men and women are incarcerated or even killed for crimes defined by the state. Wars are fought. Refugees are given a place of safety or turned away at the border.

If you believe in democracy, such power is justified only because it flows from the will of the people. “Governments,” the United States declared in its formational document, “are instituted among Men, deriving their just powers from the consent of the governed.” The premise of any democratic republic is that there are some decisions that must be made collectively, and that these decisions are legitimate because they are made by elected officials.

On Friday, the Supreme Court will hear two sets of cases that test the justices’ commitment to the idea that the right to govern flows from the will of the people, and both involve challenges to President Joe Biden’s efforts to encourage vaccination against Covid-19.

The first bloc of cases, which is likely to be consolidated under the case name Biden v. Missouri, challenges a federal rule requiring nearly all health care workers to become vaccinated. The second bloc, which is likely to be consolidated under the name NFIB v. Department of Labor, challenges a rule requiring workers at companies with 100 or more employees to either get vaccinated or be regularly tested for Covid-19.

Even on their faces, the stakes in Missouri and NFIB are enormous. These cases ask what steps the United States can realistically take to quell the spread of a disease that has already killed more than 820,000 Americans. But the full stakes in these cases are even higher.

Someone has to decide how the United States will respond to a global pandemic, and the Biden administration’s argument essentially boils down to a case for democracy. An elected Congress authorized the executive branch to take certain steps to encourage vaccination, and Joe Biden was elected to lead that branch. So that means that President Biden and his duly appointed subordinates get to make difficult decisions, even if some Americans don’t like those decisions.

The parties challenging Biden’s policies, meanwhile, effectively argue that the Supreme Court should decide America’s vaccination policy. They couch their arguments in arcane legal doctrines, with weighty-sounding names like the “Major Questions Doctrine” or “nondelegation,” But these doctrines are vague — so vague that they are easily manipulated by justices who disagree with the Biden administration’s policies and wish to conceal their desire to halt those policies behind a patina of legal reasoning.

I don’t want to minimize the significance of the policies at issue in Missouri and NFIB. In creating these policies, the Biden administration determined that its fundamental duty to preserve human life overrides many individuals’ interest in refusing medical treatment. This is a weighty decision, placing the collective health of the nation before the individual liberties of many of its citizens.

But the Biden administration estimates that its two vaccine regulations will save hundreds or even thousands of lives every month. And it decided that saving those lives is worth requiring some Americans to do something they don’t want to do. This decision is no more significant than many of the decisions governments make — to send troops to a distant conflict, to tax and to spend that money in service of a nation’s people, to save lives, or to take them. This is what governments do.

Again, someone needs to decide what America’s vaccination policy will be. It will either be made by the man chosen by the American people, or the Supreme Court will wrest that decision away from him and give it to themselves.”