Earlier this year, the Biden administration unveiled a new rule that would require many employers to ensure their workforces are either vaccinated or tested regularly for COVID-19—a public safety measure estimated to cover more than 80 million people across the country. To resolve the inevitable geyser of simultaneous legal challenges that ensued, federal law required the use of a literal ping-pong ball lottery to decide which federal appeals court will have the final say on the issue short of the U.S. Supreme Court.
The “winner” of this drawing, announced on Tuesday, is the Sixth Circuit Court of Appeals, which covers Michigan, Kentucky, Ohio, and Tennessee. The “loser” of this drawing, in all likelihood, is anyone who thinks it would be nice if more people could go to work without fearing death or serious illness as a consequence.
When it announced the rule back in September, the Biden administration explained that COVID-19 poses a “grave danger” to the U.S. workforce and merits emergency intervention. But on Friday, the ultraconservative Fifth Circuit Court of Appeals issued an order blocking the rule’s implementation in a decision that reads like something between a toddler’s tantrum and a YouTube conspiracy rant. The panel of three judges, two of whom are Trump appointees, brusquely dismissed any possibility of COVID-19-related workplace danger, even putting scare quotes around the word “emergency” to mock anyone still taking seriously a pandemic that has killed 750,000 Americans and counting. The court also framed the Biden vaccine mandate as craven political opportunism designed to expand the sweeping power of Big Government, emphasizing that the rule was only unveiled “after the President voiced his displeasure with the country’s vaccination rate in September.” It then rigorously cited a retweet by White House Chief of Staff Ron Klain of MSNBC anchor Stephanie Ruhle, who called the rule the “ultimate work-around for the Federal govt to require vaccinations,” as definitive proof of the Biden administration’s nefarious intentions.
Unfortunately, the lottery draw offers little reason for hope for a less unhinged answer than the one the Fifth Circuit already offered. Like the Fifth Circuit, the Sixth Circuit is firmly controlled by conservatives: 11 of its 16 active judges were appointed either by Presidents Donald Trump (6) or George W. Bush (5). Typically, a three-judge panel would hear the dispute first, leaving open the chance, in theory, that the rule could go before a trio of two or more Democratic-appointed judges. However, challengers are already trying to foreclose even this remote possibility, working to stack the deck by preemptively asking the Sixth Circruit for initial en banc review—for all 16 judges on this Republican-majority court to take up the question at once. In other contexts, the lottery system might be an efficient way to allocate scarce court resources. In this polarized climate and with an urgent public safety measure at stake, it feels like millions of people are now involuntary contestants in a judicially-administered Squid Game.
That the workplace safety of millions of people came down to the bounce of a few ping-pong balls is a natural consequence of the wildly successful conservative effort to take control of the federal courts. Trump appointed a record number of judges during his four years as president, including about 1 in 4 active appeals court judges at the time he left office and, of course, one-third of the Supreme Court. Now, even with Republicans technically out of power in Washington, the party gets to reap the benefits of having installed these life-tenured radicals when they had the chance. The set-up of the judicial system empowers people and ideas that voters reject to thwart the process of governing well after a president leaves office. If the Sixth Circuit behaves as the challengers hope, many people are going to be less safe because of it.