Boris Johnson in reverse: The Supreme Court gives itself what it bans for the rest of us

Boris Johnson in reverse: The Supreme Court gives itself what it bans for the rest of us

Ruth Marcus — Read time: 4 minutes

Deputy editorial page editor |

January 14, 2022 at 5:52 p.m. EST

How nice for the Supreme Court. It can take the precautions it deems necessary to keep its workplace safe.

The court has been effectively closed to outside visitors since the start of the pandemic. Now that the justices have begun hearing oral arguments in person, the lawyers appearing before them, and the reporters in the chamber, must test negative and be masked, except when speaking. Justices who aren’t comfortable with those protocols — or with the maskless behavior of their colleagues — have the flexibility to work remotely.

If only the court were willing to extend similar protections to the rest of us, in our workplaces. Or to be more precise, not to interfere with the Occupational Safety and Health Administration’s effort to provide such protections.

The factory workers standing cheek by jowl on assembly lines, the office workers crammed side by side at their cubicles, the cashiers and sales clerks at retail establishments — none of them enjoy the guaranteed safety protocols that the court has awarded to itself.

If their job requires that they show up in person, they are, in many states, at the mercy of their employers if their co-workers choose not to be vaccinated or to wear masks. In states with laws that prohibit vaccine and mask mandates, employers who want to adopt such policies are prohibited from doing so.

The court’s 6-to-3 ruling Thursday blocking the Biden administration’s vaccine-or-test mandate is yet another example of the elite playing by one set of rules while applying a different standard to the masses — Boris Johnson-ism, but worse. In that case, the British prime minister partied away in defiance of rules imposed on lesser mortals. In this one, the justices declined to extend the same protections to others that they grant themselves.

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This let-them-breathe-covid attitude would be more understandable if the pandemic were not so serious — or the law that the administration relied on in issuing the mandate were less sweeping.

Of course, people can contract covid anywhere. But as OSHA explained in issuing the mandate, “during the workday, while under the control of their employer, workers may have little ability to limit contact with coworkers, clients, members of the public, patients, and others, any one of whom could represent a source of exposure. … OSHA has a mandate to protect employees from hazards they are exposed to at work, even if they may be exposed to similar hazards outside of work.”

OSHA estimates that its mandate, had it been allowed to continue, would have saved more than 6,500 lives and prevented more than 250,000 hospitalizations over six months.

In substituting its judgment for OSHA’s, the conservative majority noted the unprecedented nature of the mandate, which would have covered 84 million workers. “This is no ‘everyday exercise of federal power,’ ” it said, quoting an appeals court judge who voted to block the rule. “It is instead a significant encroachment into the lives — and health — of a vast number of employees. “

But the pandemic is no everyday disease. It is, you might even say, “a significant encroachment into the lives — and health — of a vast number of employees” — one that has killed nearly 850,000 Americans.

How telling that the majority sees this supposed encroachment as a one-way street, an incursion on the autonomy of unvaccinated workers rather than a threat to the majority who have chosen the more responsible course yet remain, especially with the emergence of the omicron variant, at risk of breakthrough infection. In the majority’s worldview, the interests of those workers are nowhere to be found.

And why? Because of this master class in statutory sophistry: “Although covid-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. Covid-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. … Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Simply because? Most Americans don’t have a choice about whether to work or not. They deserve to be able to work in the safest possible environment. My own employer requires proof of vaccination and boosters; it has instructed us, for the moment, not to come to work unless necessary, and to mask up if we do. Why are other workers, in less flexible jobs, not entitled to similar protections when the federal agency in charge of regulating workplace safety has concluded they are warranted?

As to “clear congressional authorization,” the conservative justices like to talk about elephants hiding in mouse holes and the need for legislative clarity when agencies presume to regulate “major questions.” How about the stated purpose of the workplace safety law: to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions”? How about the statutory command to “protect employees” from “grave danger”?

“The majority … substitutes judicial diktat for reasoned policymaking,” wrote the liberal justices, dissenting. Judicial activism in the service of anti-regulatory fervor is still judicial activism — all the more outrageous when the privileged act at the expense of those with far less power.