The Supreme Court’s recent decision in NFIB v. OSHA, which blocked enforcement of the Biden administration’s test-or-vaccinate mandate for large employers, is disastrous because it will result in more avoidable COVID-19 deaths. But it is also disastrous because it heralds an emboldened conservative Supreme Court eager to ignore the text of statutes to impose its own views of public policy on the public.
The Republican nominees claim to do this in the name of protecting the prerogatives of the people’s elected representatives. This is a cynical inversion of the truth: The only power the Court is protecting is its own.
Any discussion of NFIB should start with this: Congress clearly authorized this regulation. The text of the Occupational Health and Safety Act orders the Occupational Health and Safety Administration to issue emergency regulations to “protect employees” from “grave danger” presented by “new hazards.” The law’s structure and purpose only strengthen the government’s case: It’s unrealistic to think that Congress—an institution designed to be inefficient—can anticipate every action necessary during an unanticipated emergency. To read executive powers narrowly would be perverse, because the executive is the branch best-equipped to deal with the immediate response to a crisis.
Sure, there are instances where some combination of sloppiness and the sclerotic nature of the legislative process leave ambiguities that give reactionary judges an excuse to undermine Congress’s policy design. (It would have been ridiculous, for example, for the Court to take health insurance away from tens of millions of people because of an obvious typo, but at least in King v. Burwell, the card really did say “Moops.”) In this case, though, Congress spoke plain as day. As the joint dissent puts it, the regulation “perfectly fits the language of the applicable statutory provision.”
The Republican majority’s ruling that OSHA nonetheless acted beyond its jurisdiction was not based on anything in the statute, but on arbitrary, judge-made doctrines applied with farcically illogical results. The Court’s (understandably) unsigned opinion invoked the so-called “major questions” doctrine, which holds that Congress presumptively does not delegate important policy questions to the executive. Given that Congress has been delegating its gravest authority, the power to declare war, to the executive branch since World War II, there has never been a chance that the doctrine will be applied coherently. (It’s not a coincidence that there was no judicial outcry when, say, President Donald Trump used delegated powers to promulgate “emergency” tariffs on Canada and Mexico.) As University of Colorado professor Paul Campos observes, the doctrine in practice means that “statutes written in general terms to deal with a wide variety of issues can only be enforced by Republican administrations.”
The opinion goes on to claim that the statute does not authorize OSHA’s rule because COVID-19 cannot be an “occupational” hazard, since the virus also poses a threat to people outside the workplace. This argument is so silly that to state it is to refute it. By the same logic, the OHSA can’t require workers to wear hard hats at construction sites because falling objects can hit you on the head in the privacy of your own home, too. (In a signal that the conservatives perhaps understand the vacuousness of their own argument, their opinion repeatedly italicizes the word “occupational,” as if use of a different typeset would magically make the word mean something it does not.) And as The Atlantic’s Adam Serwer points out, the opinion is suffused with the soft anti-vaccine arguments that have become the dominant position of Republican elites since the inauguration of Joe Biden. The legal arguments, such as they are, are reverse-engineered to justify ruling on behalf of those anti-vaccine sentiments.
It would be nice to think that this bad-faith reading of a statute stands out as particularly egregious. It does not. Consider the Republican majority’s recent treatment of the Voting Rights Act, which is perhaps even more indefensible. Brnovich v. DNC, decided last summer, is a case about amendments to the VRA when Congress reauthorized the law in 1982. Two years earlier, a plurality of the Supreme Court had held that finding illegal discrimination under the VRA required a showing of discriminatory intent—a requirement found nowhere in the statutory text. The Reagan administration, led by a fanatical opponent of voting rights named John Roberts, urged Congress to codify this new standard.
The right’s motivations were obvious: Requiring proof of discriminatory intent is the most important tool of reactionaries seeking to undermine nondiscrimination law, because intent is generally very difficult to prove unless the relevant public officials are dumb enough to admit it. (Or, in the case of the Roberts Court where Trump is involved, even when they are.) Historically, this high bar has essentially been a message to public officials that they are free to discriminate, as long as they can find ways to do it without explicitly mentioning race.
Congress, however, rejected the arguments made by Roberts and the other Reaganites who wanted the VRA disemboweled. Lawmakers did not only decline to codify a requirement to show intent; they explicitly made illegal practices that gave any group “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” irrespective of whether anyone’s intent caused this disparate impact.
In Brnovich, Roberts had the chance as Chief Justice of the United States to win the fight he’d lost four decades earlier. Voting rights activists challenged two Arizona election laws that had a disparate impact on voters of color. The plaintiffs presented strong evidence of discriminatory impact: For example, under a law that invalidated ballots cast in the wrong precinct, voters of color saw their votes thrown out at higher rates than white voters. A ban on third-party absentee ballot collecting, meanwhile, resulted in measurably lower voting access for Native Arizonans living in remote areas of the state.
But the Court’s five Republican justices ignored both the clear language and purpose of the law, erecting numerous extratextual bars that make it all but impossible to win a case like this without showing discriminatory intent. As Justice Elena Kagan wrote in an unanswerable dissent, Justice Samuel Alito’s opinion for the Court was a “law-free zone,” basing its holding on “on a list of mostly made-up factors.” (Among them: The majority invented a rule that restrictions on the vote that existed when the Voting Rights Act was enacted should be presumptively constitutional, which, if true, would sort of obviate the purpose of a Voting Rights Act in the first place.)
Sound familiar? In essence, a six-justice conservative supermajority “interpreted” the Voting Rights Act as if Roberts had prevailed in 1982, when in fact Congress had repudiated his vision for what the law should look like. The same is true of the Court’s opinion in NFIB: None of the “rules” are found in the text of the statute. They’re simply meant to frustrate the will of Congress whenever Congress does something that leads to results the justices don’t like.
NFIB and Brnovich are especially ominous for American democracy because they leave Congress with no outs. Courts that willfully ignore the text and purpose of major statutes are an existential threat to democratic self-rule, because even if majorities can surmount the formidable obstacles to legislating, Republican-controlled courts can simply rewrite the law to suit their own preferences. In his concurrence in NFIB, Justice Gorsuch claimed to be standing up for “the people’s elected representatives in Congress.” In reality, the Court has found another way to consolidate power in itself.