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Law & the Courts

Justice Sotomayor: How Are Unvaccinated Workers Different from Machinery Spewing Toxins?

Supreme court associate Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer (L to R) attend then President Donald Trump’s address to Congress in Washington, D.C., February 28, 2017. (Carlos Barria/Reuters)

One of the creepier aspects of today’s Supreme Court arguments in the OSHA vaccine-mandate case was hearing Justices Sonia Sotomayor and Stephen Breyer treat unvaccinated workers as if they were subhuman. Here’s Sotomayor:

JUSTICE SOTOMAYOR: So what’s the difference between this and telling employers, where sparks are flying in the workplace, your workers have to be — wear a mask?

MR. KELLER: When sparks are flying in the workplace, that’s presumably because there’s a machine that’s unique to that workplace. That is the —

JUSTICE SOTOMAYOR: Why is the human being not like a machine if it’s spewing a virus, blood-borne viruses? Are you questioning Congress’s power or desire that OSHA do this? It already in 1991 told OSHA to issue regulations with respect to Hep C and B.

Leave aside that COVID is not “blood-borne” — if you’re wondering, the authorization regarding hepatitis in the workplace is explicitly set forth in the statute, which actually weakens her argument for reading the statute’s more general language to contain an implicit congressional power to treat all human workers as potential workplace hazards. I suppose if I was a progressive pundit, this is where I would dump 20 self-righteous paragraphs about the history of dehumanizing other people by treating them solely as walking disease vectors no different from hazardous machinery, but I assume that readers get the point: We really should not go down this road.

Then there was Justice Breyer, arguing that it should be acceptable for OSHA to adopt regulations that drive workers out of the workplace because, hey, some people might quit rather than work with unvaccinated others:

And they said, in our view, hmm, yeah, that’s right, some people may quit, maybe 3 percent. But more may quit when they discover they have to work together with unvaccinated others because that means they may get the disease.

The raw transcript fails to capture the scorn dripping from Breyer’s voice when he said “unvaccinated others.” It is certainly a turn of sorts for the Court’s liberals to argue that it’s acceptable for workplace laws to drive out employees because other people might quit rather than work with them. Just imagine the response if this had been said by a justice about, say, people with HIV. In 1987, Justice William Brennan was sticking up for a teacher with tuberculosis. How liberal attitudes have changed.

The irony, of course, is that the entire conceptual framework of unvaccinated people being a risk to the vaccinated is obsolete with the Omicron variant, which spreads with as much ease between vaccinated people as unvaccinated. That does not make vaccination irrelevant; the greater ease of spread means that you are taking a greater personal risk to yourself by remaining unvaccinated, because it’s harder to avoid the disease, so it’s all the more urgent to build your immunity to serious illness. But it does mean that this sort of rhetoric about the unvaccinated as toxic subhuman presences in the workplace is already outdated in 2022.

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