We should never think of Supreme Court rulings as “minor,” but there was a perceptible let-down among Court watchers this morning when the Court issued a much-anticipated decision that . . . sorry . . . was not the decision that was much anticipated.
Many had convinced themselves that we’d get a ruling in the two Biden vaccine-mandate cases (the OSHA and HHS mandates) that are on the Court’s emergency docket and were argued last Friday. In the event, we got the Court’s decision in a case that has not attracted much curiosity — a statutory-interpretation case involving the technical question of whether civil-service pension payments to a military technician qualify as payments based on “service as a member of a uniformed service.” (They don’t, according to an 8-1 ruling, with Justice Amy Coney Barrett writing for the majority and Justice Neil Gorsuch filing a short dissent — with “trepidation,” he confessed.)
I think we’ll get rulings on the vaccine mandates soon, but not that soon.
People seemed to think that there was acute pressure on the justices because the OSHA mandate took effect on Monday (January 10). But not all of it — and, critically, not the important part.
This was the subject of some discussion at the oral argument (see the transcript, pp. 89-95). Justice Samuel Alito raised the question of whether the Court should order a short “administrative” stay — basically, as I noted in last Friday’s analysis of the arguments, a delay of just a few days so the Court can sort through all the briefs and contentions under less time pressure. But, as Biden administration solicitor general Elizabeth Prelogar explained (and Justice Sonia Sotomayor emphasized), the only thing triggered this past Monday was the masking aspect of the OSHA mandate, which is really not a big deal.
The crucial deadline is February 9. That is when businesses are put to the choice of requiring that workers be vaccinated or, alternatively, implementing a mask/regular-testing regime for the unvaccinated. In the month leading up to February 9, companies are supposed to be gathering information about the vaccination status of their employees and making a plan for what they will do come February 9.
Of course, all of this is reading tea leaves, as the saying goes. The Court could issue a ruling at any time, and as far as business planning and worker anxiety are concerned, the earlier the better.
I doubt, however, that the justices feel they have to publish a decision much in advance of February 9. The Court cares deeply about both the quality of its work and how it is seen by the public. The justices are undoubtedly miffed about media criticism of misstatements made at last Friday’s session (mainly by Sotomayor, but she was not the lone offender). Moreover, the cases are complicated. As I detailed a couple of days ago, there are salient differences between the two mandates, so the analysis varies, and we could get a split decision — or even splits within splits.
Despite the crunched time-frame, The Nine are likely to take the time they think they need to issue opinions that are up to the Court’s standards of craftsmanship and reasoning. We may get a decision by the end of this month, but I wouldn’t bet on its being much before February 9.