Politics Over Judging? A Problem, But Not with the Supreme Court’s Recent Mandate Decisions

I called into Michael Smerconish’s radio show on Friday, January 7th after Erwin Chemerinsky, the dean of Berkeley Law,  spoke vaccine mandate cases currently before the Supreme Court. Chemerinsky asserted on-air that the vaccine mandate case was clear on the law and that, if the mandate was struck down, it would be because conservative justices chose partisan ideology over objective legal analysis. I disagree with that assessment.

I agree with both Michael and Dean Chemerinsky that our judges have been taken hostage by partisan loyalties to the detriment of fidelity to the law. This is not only a serious problem; it is a breach of the oath they take to uphold the Constitution. However, I find it disingenuous for someone as learned as Dean Chemerinsky to insinuate that only the conservative justices are at risk of sacrificing objectivity for partisanship.

Frankly, from my perspective and experience as the Chief Legal Counsel to former Wisconsin governor Scott Walker, it is the judges donning a left-leaning worldview who tend to choose ideology over the law – often contorting legal norms to fit a desired outcome of judicial liberalism. Legal scholars on the left routinely make the case for finding hidden meanings or “penumbras” (looking at you, Roe v. Wade) in the Constitution that have no basis in the text of the document. They don’t think twice before championing doctrines – such as “substantive due process,” for example – that consist entirely of judge-made law and serve as an excuse to ignore what is made clear from legal text.

To be sure, conservative judges – especially in more recent years – are not immune from this temptation and all too often join in making that trade in their own party’s direction. However, the classic aspiration of conservative judging is to say what the law is and not what a judge thinks it should be.

Now that these Supreme Court cases have been decided, we have the benefit of the opinions to inform our understanding of how the justices came down on the issue. They do the heavy lifting for me here in disproving Dean Chemerinsky’s argument that an anti-mandate decision was necessarily driven by partisanship. If the six Republican-appointed justices were beholden only to their ideological preference against vaccine mandates, the Court would have struck down the mandate in both cases. But it didn’t; it halted one mandate and let the other continue.

Under Dean Chemerinsky’s assessment, both mandates would have been struck down since the conservative justices, in his opinion, value ideology over law. Under an objective one, it’s simple: each case raised a different legal question. The Court answered each case’s legal question, and not its policy question, so it is unsurprising that it reached a different result in each.

That being said, let’s look at the legal arguments at play here. In the first case, titled Nat’l Fed. Independent Bus. V. Dept. of Labor, the legal question was straightforward: Did OSHA have the authority to issue the vaccine mandate? The question is not whether COVID-19 is bad or whether vaccines are good, it is simply looking at the authority of OSHA.

Agencies like OSHA don’t have roving public-health authority to utilize at their own discretion – they have only those powers Congress gave them. Here, Congress authorized them only to create workplace regulations. COVID-19’s impact is undoubtedly pervasive, and it has wreaked havoc in every crevice of our society.

As such, that is precisely why characterizing it as a threat uniquely tethered to the workplace defies commonsense. Controlling COVID is a public-policy matter of colossal importance and it is, therefore, best made by the elected representatives accountable to the people and through the legislative means subject to our robust democratic process. Congress had every opportunity to mandate vaccination on its own and it declined to do so. That fact is determinative.

The second case, Biden v. Missouri, presents different facts, and therefore, the justices ruled differently. The question: Did the Department of Health and Human Services have the authority to require vaccines for health care workers at facilities that participate in the Medicare and Medicaid programs? The court held that the Department was within its authority to impose a vaccine mandate on healthcare workers in facilities receiving federal funds. Unlike OSHA, which was trying to impose a mandate on nearly all workplaces, DHS was acting on workplaces that benefit from federal funding and have the purpose of caring for the health and safety of their patients.

This distinction between these two cases is not semantics or legalism; it goes to the heart of our individual liberties that our Constitution centers around protecting. Unelected agencies like OSHA have no comfortable place in our constitutional structure. They act in all capacities—legislative, executive, and judicial—yet they are not subject to any of the safeguards that keep those branches in check. For that reason, it often comes down to the judiciary to ensure agencies aren’t exceeding the authority that Congress expressly gave them.

Unmooring a legislative power as consequential, far-reaching, and policy-heavy as requiring vaccination for 84.2 million Americans puts our individual liberties in serious jeopardy. If Americans disagree with that policy decision, they can’t vote OSHA out of office. They can’t call up their OSHA representative and tell them how they’d like to be represented.

Even if that weren’t enough to convince you that there might be some good-faith legal argument worth mentioning to your audience here, let’s also not forget that this was no ordinary administrative rule at issue. As we all recall from grade school, laws enacted by Congress go through a rigorous, drawn-out, and deliberative process before they can bind the public. Agency rules must similarly comply with a statutorily prescribed process that helps provide some deliberation and public input.

OSHA, on the other hand, issued a mandate without complying with the statutory procedures ordinarily required for promulgating rules – citing an emergency to expend with procedure. OSHA has utilized this emergency power only nine times; six of those measures were challenged in court and only one of them survived in full. Regardless of the content of the mandate, this fact alone shows OSHA was facing an uphill battle.

My legal thinking boils down to our Constitution. It is a contract between the federal government and its people, stemming from the recognition that the government has only that authority that the people grant to it. To ignore that principle in the name of a public-health emergency is to unilaterally change the contract and to open the flood gates to an abuse of power whenever the next emergency – or whatever might qualify as one – rolls around, subject only to the whims of the person who happens to be in power at the time.

So, when examining these recent Supreme Court decisions, let’s do our utmost to view them by the merits and not forsake the justices’ legal analysis as partisanship.