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Law & the Courts

The Court’s Liberals Pen an Ode to Experts That Sounds Like Spring 2020

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)

The dissent in the OSHA decision is presented as being co-authored by the three liberals on the Supreme Court: Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. It reads like an early 2020 ode to experts and expertise:

OSHA employs, in both its enforcement and health divisions, numerous scientists, doctors, and other experts in public health, especially as it relates to work environments. Their decisions, we have explained, should stand so long as they are supported by “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” [quoting a passage from a 1951 opinion] Given the extensive evidence in the record supporting OSHA’s determinations about the risk of COVID–19 and the efficacy of masking, testing, and vaccination, a court could not conclude that the Standard fails substantial-evidence review…

Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes? Here, an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed. . . . The agency’s Standard is informed by a half century of experience and expertise in handling workplace health and safety issues.

When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed.

You’d think we had learned something, by now, about blind trust in experts. One of those things is that experts in some branch of science are not experts in human liberty — nobody is, so we have laws passed by the people, and the job of experts is to advise, not to rule. In particular, experts should be less trusted when they won’t stay in their lane. OSHA, as an agency, is not an expert in vaccines or pandemics. That’s not its job. And on the question “who decides,” the whole point of the case was that Congress decides when to make big, important laws governing major national issues. Nobody seriously believes that Congress, in 1970, believed that it was authorizing OSHA to become a national vaccine regulator. The Supreme Court is not obliged to pretend otherwise simply because of a general invocation of “expertise.”

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