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The Fox News Court


The core argument made by the Republican majority in its opinion striking down the mandate was, literally, that the OHSA cannot regulate a grave threat in a workplace if it also a grave threat outside of the workplace:

Yesterday, the Supreme Court blocked the Biden administration’s mandate, which compelled companies with more than 100 employees to require their workers to be vaccinated against COVID-19 or tested regularly. (The Court narrowly allowed a similar requirement for health-care workers to remain in place.) The majority’s reasoning is that because the hazard of COVID-19 is present outside the workplace, OSHA exceeded the authority it has to regulate workplace safety.

“COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the unsigned opinion reads. “That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”

This is laughable logic. OSHA regulates many, many hazards that are also present outside the workplace. The fact that you can die in a fire in your apartment is not an argument against regulating fire hazards in factories or offices. The mandate applied to firms whose employees have to work indoors, because that’s how the virus spreads. Moreover, unlike attending a sporting event as a spectator, people have to go to work, unless they’re lucky enough to be, say, a Supreme Court justice, in which case you can work remotely.

This argument is astoundingly stupid. The fact that stuff can fall on your head at home doesn’t mean that the OHSA can’t require workers in construction sites to wear hardhats. Nobody could actually believe it. And yet it’s the foundation on which the entire opinion rests.

Of course, the law has nothing to do with any of this. Congress can’t speak clearly enough when a hack court places a high enough priority on a policy preference to simply ignore even determinate legal texts, and anti-vaxxism has joined voting rights as one of these issues for Republican elites:

It is to be expected that a conservative-dominated Court would be hostile to federal regulation of business. And it makes sense that the justices would also express their opposition in federalist terms, arguing that the states can do what the federal government can’t. But the decision in the employer-mandate case, and the dissent from the four conservative justices in the health-care case, hinges on a new and alarming embrace of the right-wing culture war against vaccination, a deeply regrettable cost of conservative political strategy and political-identity formation.

Fox News, day in and day out, has discouraged its audience from getting vaccinated and promoted anti-vaccine propaganda, even as it maintains a strict testing and vaccination regimen for its own staff. The right-wing network has not just attacked mandates as tyranny, but suggested that the vaccines will kill those who get them, challenged the efficacy of the vaccines, and argued that they are making the pandemic worse. The network’s hosts have compared vaccine requirements to Jim Crow segregation and South African apartheid, historical events they consider crimes against humanity in this particular context but in any other would argue weren’t that badhappened a long time ago, and you should really get over it. It was arguably inevitable that the justices would echo their cultural milieu—in which a COVID vaccine is like a mark of Cain that stains the soul forever—in their decision.

The conservative wing of the Court wants to have it both ways: insisting they are not questioning the safety or efficacy of vaccination, while issuing decisions that are entirely premised on the right’s newfound and quasi-religious conception of them as traumatic and metaphysically significant—a necessity for the mandates to be seen as oppressive. This is little more than culture war dressed up in the language of constitutionalism.

As Adam goes on to explain, the anti-vaxx turn among Republicans is an entirely new thing, invented for the Biden administration. Just pure nihilism, shared by people who will control the Supreme Court for decades.

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