Supreme Court to hear arguments on two vaccine mandates. Here’s what to expect

Judy Woodruff:

The Supreme Court will hold a special hearing on January 7 to consider challenges to two pieces of the Biden administration's strategy to get the pandemic under control.

John Yang returns with this look he recorded earlier on the arguments to come.

John Yang:

Judy, at stake are two Biden administration pandemic efforts that lower courts have at least partially blocked.

One is the requirement that big employers make sure their workers are either vaccinated or regularly tested. The other requires that health care workers at facilities that get federal money are vaccinated. Together, the two cover about 97 million Americans. They're being challenged by religious, labor and business groups and some Republican-led states.

Marcia Coyle is chief Washington correspondent for "The National Law Journal."

Marcia, thanks for being with us.

These are oral arguments this court scheduled on emergency petitions. How unusual is this and how unusual is this whole process?

Marcia Coyle, "The National Law Journal": It's very unusual, John, unusual because the court has ordered oral arguments.

These cases have come in, as you said, as emergency applications on what is now commonly known as the shadow docket. And the court generally handles emergency applications without arguments. And when it issues an order or a decision in those types of cases, it's often very cursory, with little explanation.

So it took is by surprise, yes, and also the day that it will be argued is surprising. It's on a Friday before the justices sit on the bench for their January argument session. And I guess that begs the question, why these? Why the arguments in these cases?

And I have give given some thought to that. And I think there may be two more reasons, one more important than the other. The court has taken criticism recently about its handling of emergency applications without full arguments and with cursory decisions, opinions.

But I think, more importantly, it's the nature of these cases, John. We are still in the middle of a pandemic, one that is surging with a new variant. And I think that the court knows that these questions are significant, and people need to know, employers need to know, health care workers need to know, and, in fact, we all really need to know if the government can do what it wants to do.

John Yang:

And that employer mandate actually is scheduled to take effect on the Monday after the arguments, on the 10th.

Now, what are the justices going to be examining in this case — these cases?

Marcia Coyle:

John, I think, at their core, these cases are really kind of basic statutory interpretation cases that the justices see all the time, although this is a new one.

It's going to involve basically two statutes that govern the Occupational Safety and Health Administration, as well as the Department of Health and humans services CMS agency, whether those statutes actually authorize the federal agencies to do what they had — they plan to do, whether they can require these vaccine or testing rules.

So that's where I think the justices are going to really home in on, whether there is the authority to do this.

John Yang:

And since the pandemic began, there have been emergency applications to the Supreme Court on state and local rules about COVID, sort of restrictions on attendants, gatherings of large groups of people, and also recently about state and local vaccine mandates.

Marcia Coyle:

That's right.

John Yang:

What's been sort of the approach of the court to these previous cases?

Marcia Coyle:

Well, I think, in terms of the state and local vaccine requirements, the court hasn't been very sympathetic to those who are objecting to those requirements either on religious or other grounds.

There is a bit of division within the court. More recently, we have seen three justices in particular, Justices Thomas, Alito and Gorsuch, who are very sympathetic to claims that the vaccine requirements may violate the free exercise of religion.

But, right now, it appears that there are six justices who aren't very sympathetic to challenges. But — and this is a big but — the conservatives on this court — and there are six of them — are very skeptical of broad government power. And we saw that when they considered the eviction moratorium and whether there was authority to extend that moratorium, and the court said, no, there wasn't.

So I think that the — at least the conservative justices will be looking very closely at the authorizing statutes for the agencies involving President Biden's hope of mandating or requiring vaccines or testing.

John Yang:

Marcia Coyle of "The National Law Journal," thank you very much.

Marcia Coyle:

My pleasure, John.

And have a great holiday. Stay well.