Two absent lawyers and more masks sit on bench amid debate over COVID-19 policy
January 7, 2022
courtroom exterior An inside look at important oral debates and announcements of opinion unfolding in real time.
In two cases about the Biden administration’s response to the COVID-19 pandemic, there are several unusual and noteworthy things about today’s argument.
But the snowy days in Washington were not one of them. Fresh snow fell overnight Thursday through Friday after a surprisingly damaging blizzard that hit the capital region on Monday brought misery to those stuck on I-95 for 24 hours or more . School districts are closed, and so is the federal government. That is, the weather decision-control part of the Office of Personnel Management.
Anyone who has followed knows by now that the Supreme Court is an independent branch on a snowy day, and courts are rarely closed even when the rest of the government shuts down. Snowfall of 2 to 4 inches this morning seems insignificant compared to Monday’s 7 to 14 inches. As a colleague of mine pointed out, clearing snow from her car took more time than commuting to the ballpark on a quiet (and quickly clearing) street.
What’s unusual about today’s arguments is that they take place on Friday and come from urgent cases in court.Earlier this term, the court took the unusual step of Seeking emergency request to block Texas anti-abortion law. The court did so again in today’s case: National Federation of Independent Business v. Department of Labor, regarding OSHA’s vaccination or testing rules, and Biden v Missouri, on the Department of Health and Human Services’ emergency rule requiring the vaccination of workers at health care facilities that participate in Medicare or Medicaid.
Just before 9 a.m., a court spokesperson informed reporters that Justice Sonia Sotomayor had chosen to appear in her chamber for today’s argument. Apparently, this is because the highly contagious variant of Omicron has led to a surge in COVID cases in Washington, D.C., and across the country. Sotomayor, who has an underlying medical condition — diabetes — has been the only justice to wear a mask on the bench since the court resumed in-person arguments in October. It soon became apparent, however, that most of her colleagues had reconsidered their cover-ups.
The spokesperson also announced that two attorneys challenging the Biden administration’s policies — Ohio Deputy Attorney General Benjamin Flowers and Louisiana Deputy Attorney General Elizabeth Merrill — will debate remotely.Reuters later Report Flowers tested positive for Covid-19 after Christmas and Muriel’s absence was “under Covid-19 protocol”. (according to the court’s policy, debate lawyers must take a PCR test the day before the debate, and if the test is positive, the debate must be conducted remotely. )
While Muriel wasn’t in court, her bosses were: Louisiana Attorney General Jeff Landry who arrived and took a third seat at the second case table, and an attorney for the Missouri attorney general’s office.
Perhaps because he was a politician, Landry stood chatting with reporters even as the argument was about to begin. He was asked if Muriel was absent because he tested positive for COVID. Landry said she was following the court’s pandemic protocol.
At 10 a.m., eight judges arrived as scheduled. Seven of them wore masks. Justice Neil Gorsuch was the only one who didn’t. Gorsuch usually sits next to Sotomayor. Today, the chair to his right is empty.
Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito and Amy Coney Barrett wore white masks, while Justices Clarence Thomas, Elena Kagan and Brett Kavanaugh wore black or dark masks that clashed less with their robes.
Roberts took off the mask to call the first case, then put it back on. Thomas and Alito take off their masks once the argument begins, but they usually wear them for extended periods of time unless they ask a question.
Roberts, Kavanaugh and Barrett took off their masks to ask questions, but they would put them back on unless they took a sip.
Breyer and Kagan wore masks throughout the debate, even as they asked questions (as Sotomayor did in court).
Sotomayor apparently has some kind of direct connection to her room, as she speaks with such a clear voice. The audio of the two lawyers appearing remotely was transmitted over the phone line and was a little hoarse. When the Chief Justice arrived to visit Flowers, he said, “I don’t know where to look, but are you still on the phone?”
At the same time, white and red lights, which signal various signals, come on during each lawyer’s argument time, whether or not someone is on the podium.
In what will be a fairly routine debate next week, the need for greater use of masks and some people to participate remotely can easily emerge. The fact that it’s all happening today, in two cases over federal vaccine policy, underscores the fact that the pandemic has as much a place in court as any other agency in the United States.
During the OSHA debate, Barrett asked U.S. Attorney General Elizabeth Prelog whether the country was in a “protracted epidemic” or an “epidemic.”
It’s not a purely rhetorical statement or a series of questions, but it could be.
“New variants will emerge,” Barrett said. “There may be new treatments, new vaccines. We have boosters now, right? … So when is the emergency over? I mean, a lot of the debate is about Congress’ failure to act. Two Years from now, do we have any reason to think that COVID will go away, or maybe there won’t be a new variant?”
Later, Roberts asked Muriel during the HHS argument if she agreed with the federal district judge’s observation in the case in a Nov. 29 opinion that “COVID no longer constitutes the dire emergency it once did.”
“Your Honor, I think . . . those are quicksand,” Muriel said. “Obviously, the coronavirus situation can change at any time. They have.”