Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of clinical law at NYU School of Law, lecturer-in-law at Columbia Law School and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.
Covid-19 vaccine mandates are up for consideration at the US Supreme Court once again, with arguments set for Friday – but this time with a couple of twists. Two consolidated cases have made their way to the high court for emergency action, meaning the appellants are seeking to influence whether these mandates take effect now, while litigation proceeds, over whether they are legal and constitutional.
One of the cases involves the Biden administration’s vaccine-or-testing requirement for employees of large businesses. The other addresses the administration’s vaccine mandate (which includes medical and religious exemptions) on health care providers receiving funding through Medicare or Medicaid.
You might be thinking that the Supreme Court had already ruled on numerous cases about Covid-19 vaccine mandates – and you would be correct.
But these two cases are a bit different. Because they involve actions by federal agencies – the Department of Labor’s Occupational Health and Safety Administration and the Department of Health and Human Services’ Centers for Medicaid and Medicare Services – the key legal question raised here is not whether the actions are reasonable and necessary in light of the pandemic, but whether Congress provided the agencies with the authority to issue these directives under the relevant statutes. The states challenging the federal mandates have also argued that they impinge unconstitutionally on state sovereignty.
As a result, the prior decisions and analyses of the Court in mandate-related cases are not particularly helpful in predicting what the justice will do. Nor will the rulings here necessarily affect further efforts by states, localities and private businesses to determine their own vaccination policies. Instead, the potential importance of the rulings here could be in foreshadowing the conservative majority’s view of executive power: specifically, how much control the federal government has over rule-making, an issue which obviously applies to legal questions far beyond vaccine mandates.
Of course, this is an emergency application and not a ruling on the merits, but part of the legal standard that justices must consider in determining whether to issue an injunction is whether they think those seeking to stop the mandates from taking effect are likely to prevail when the merits are ultimately considered. As a result, the ruling may provide a window into the court’s thinking that may be instructive to lower courts and serve as a precursor of what will happen when the court is faced with the same or a similar issue in the future.
The other interesting thing about this week’s arguments is the procedural path that got us here. The cases to be argued are part of the so-called “shadow docket,” where the Supreme Court considers matters that are not on the regular court calendar, such as requests for emergency action. These matters come to one justice and are virtually always decided without oral argument and without a published opinion.
Shadow docket rulings are often irreversible, and in recent years the number of emergency applications taken up by the court has skyrocketed. As one example where the federal government used the shadow docket in an attempt to overturn disfavored lower court rulings, the Trump administration filed suits to overturn numerous lower court holds on prisoner executions. The court, as part of its emergency powers, cleared the way for the lethal injection of 13 inmates, the first federal executions in the United States in 17 years.
The shadow docket was also the vehicle for the court leaving in place a draconian law banning most abortions in Texas last January, a decision which led to the announcement of congressional oversight hearings. In part due to the Texas abortion case, the shadow docket has been the subject of much criticism because of the lack of process and transparency it entails. Even as the number of emergency applications has increased, it is unusual for a justice to refer such a matter to the full court, and it’s exceedingly rare for the court to grant oral argument.
Yet this is exactly what happened here, as Justices Samuel Alito and Brett Kavanaugh, who received the emergency requests, referred them to the whole court and the court, as it had in the Texas abortion law case, scheduled the case for oral argument – this time even cutting short the justices’ holiday break to do so.
In setting this for immediate argument in such an unusual manner, is the court merely reacting to the importance of the matter, with nearly 100 million people impacted? Is it an implicit acknowledgment of the criticism the court has faced over its shadow docket activities in the past few years?
Does it mean that at least some on the court anticipate that their ruling will significantly affect federal agency authority for other cases down the road? Time will tell on these questions, but one bet seems safe, given the unusual treatment of this case: At Friday’s arguments we should all pay close attention.