Borrowing a famous lyric from the Motown stars the Supremes, and giving it a small legal twist, last Friday reminded us, “Ain’t no Mountain High Enough to keep the Supreme Court from Doing its Duty.”
The Supremes, or the nine Justices of the United States Supreme Court, are an extraordinary group. The acronym SCOTUS does not give these judges the credit and respect they deserve. Arguably, it’s the most important job in the free world.
Last Friday, the Court was in the spotlight as they listened to four hours of oral arguments on the fate of the OSHA ETS and the Centers for Medicare and Medicaid (CMS) vaccine and testing mandates for private employers with more than 100 employees (ETS), and healthcare facilities (CMS). It begs the questions - How did all this get to the Supreme Court, what can the Supreme Court do, and how do I get on the Supreme Court? Let’s start with the easy question; it’s pretty hard to get to become a Justice on the Supreme Court. It’s a place reserved for the nine best and brightest legal minds in America.
Justices of the Supreme Court will be the first to tell you they don’t make the laws; they just examine a law, or in this case emergency standards, to see if they will withstand Constitutional scrutiny. So how did the OSHA ETS and CMS mandates get to the highest court in the land? With more than 25 different states suing the President and the Department of Labor, the danger of conflicting court decisions was looming. Regarding the ETS, the Federal Courts of Appeal consolidated cases and sent them via a lottery process to the Sixth Circuit for resolution. In December, the Sixth Circuit reversed and dissolved a previous stay put in place by the Firth Circuit opening the door for OSHA to enforce its ETS. The CMS mandate similarly wound its way through the courts, albeit state courts, but the final destination was the same as the ETS, the Supreme Court. Now the Supreme Court is charged with determining whether the ETS and CMS will stand or if they will be struck down on the grounds that these governmental agencies extended their reach beyond their Constitutional powers.
As we all learned in civics class, the tree of democracy has three branches - Executive, Legislative and Judicial. Only the Supremes can trim the leaves of the other two branches. The ultimate question is whether OSHA and/or CMS have the power to enforce their respective vaccine/testing mandates?
No one knows for sure how the Court is going to rule. They could uphold the mandates, strike them down, or even do something in between like upholding certain aspects like mandatory testing and masking but dispensing with the political hot potato of mandatory vaccination. Experts think the Supremes’ written decision will be soon but what is soon in the law? Generally, soon is measured in months but don’t worry the Supremes won’t keep us hanging on; most employment law practitioners are predicting we will hear something this week.
This is democracy in action so to borrow from the Supremes one more time, just remember you can’t hurry democracy, no you just have to wait, democracy doesn’t come easy, it’s a game of give and take. Think it over.
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The foregoing should not be understood as, or considered a substitute for, legal advice. For specific inquiries, please contact Madalene A. B. Witterholt or another licensed attorney.
Madalene A. B. Witterholt is an attorney with Crowe & Dunlevy, crowedunlevy.com, and a member of the Labor & Employment Practice Group.