WASHINGTON – The Supreme Court announced Wednesday it will hear oral arguments in a number of challenges to President Joe Biden’s COVID-19 vaccine-or-testing requirements for large employers and health care facilities.
The high court was already considering several appeals about those requirements on an emergency basis – which rarely involve oral arguments – but the court announced it would take a more formal approach to the cases and scheduled arguments for Jan. 7.
The justices deferred action on the challenges until after then.
While largely a procedural move, the development signaled the nation’s highest court may be prepared to wade into the thorny issue of vaccine mandates for the first time during the coronavirus pandemic. The court has turned away challenges to other such regulations in Indiana, Maine and New York, allowing state or local vaccine mandates to remain in effect.
The development was also the latest instance in which the high court shifted the way it is approaching a case pending on its so-called shadow docket. The court has come under fire this year for tackling a number of high-profile issues on its emergency docket without oral argument, formal opinions and disclosing which justices were in the majority.
Earlier this year the court moved a challenge to Texas’ law banning abortion after six weeks of pregnancy to its merits docket so the justices could hear arguments. It also shifted the emergency case of a death row inmate claiming violation of his constitutional right to practice his religion in the execution chamber to its regular docket.
One of the Biden administration requirements, which affected large companies with more than 100 employees, was allowed to take effect by a federal appeals court in Ohio earlier this month. The administration later announced employers would be given until Feb. 9 to comply. The regulation requires workers to receive vaccines or regular tests.
Another Biden regulation requires vaccines for health care workers at facilities that receive federal funding, such as through Medicare. Federal courts in Missouri and Louisiana blocked that requirement and the Biden administration appealed to the Supreme Court, asking the justices to allow the mandate to be implemented.
But the court has so far largely avoided the issue of vaccine mandates. In turning away a challenge to Maine’s mandate for health care workers in October, Associate Justice Amy Coney Barrett noted the court has “discretionary judgment” about whether to take an emergency appeal. Without that, she wrote, “applicants could use the emergency docket to force the court” to give a “merits preview in cases” on a “short fuse.”
“In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented,” Barrett wrote in an opinion joined by Associate Justice Brett Kavanaugh.
The high court’s emergency docket – which more recently has been referred to as its shadow docket – is what litigants use to seek quick action, usually to temporarily block enforcement of a law while courts consider the merits of the challenger’s arguments.
Unlike the merits docket, the high court doesn’t hear oral arguments about emergency requests and its opinions – if it issues them at all – are usually far less thorough.
‘This too shall pass away’ this famous Persian adage seems to be defeating us again and again in the case of COVID-19. Despite every effort