Chief Justice John Roberts pivoted off of Justice Elena Kagan’s points about vaccines and testing being the best approach for addressing the pandemic in the workplace.
“Why wouldn’t OSHA have the authority to do the best approach possible to address what — I guess you would agree — is a special workplace problem?” Roberts asked during the Supreme Court's oral arguments.
But in a worrying sign for the Biden administration, Roberts then expressed some skepticism of the administration’s broader approach in rolling vaccine mandates across several agencies.
Roberts referenced the arguments planned later Friday for a separate health care worker mandate being implemented by the US Department of Health and Human Services: “It seems to me that the government is trying to work across the waterfront and is just going agency by agency,” Roberts told US Solicitor General Elizabeth Prelogar.
“I understand the idea that agencies are more expert than Congress. I understand the idea that they can move more quickly than Congress. But this is something that the federal government has never done before,” Roberts said.
More context: Roberts is a key swing vote the Biden administration will likely need to keep the mandate in force. But the administration will also need to convince a second conservative justice to join the three liberal justices likely to vote in favor of the mandate as well.