Supreme Court conservatives turned off textualism to toss out vaccine mandate | Opinion

The U.S. Supreme Court. Photo by Win McNamee/Getty Images)

Most analysts of the U.S. Supreme Court’s January 13 decision striking down the Biden administration’s vaccine mandate for employers with 100 or more employees — while upholding it for health care workers at facilities receiving federal funds — have focused on the factual analysis and legal reasoning of the six conservative justices that comprise a majority and the three dissenting liberal members.

But one overlooked feature of the decision has been how the majority strayed from its oft-expressed allegiance to a law’s plain language — in this case Congress’s legislation that authorized the Occupational Safety and Health Administration (OSHA) to adopt emergency rules.

The majority retreated from the legal principle known as textualism, which holds that the text, or words, of statutes and regulations alone governs how courts should interpret them.

As the doctrine’s architect, the late Justice Antonin Scalia described how “textualism, in its purest form, begins and ends with what the text says and fairly implies.” Despite professing fidelity to textualism, the court’s conservative wing strikingly deviated from the principle by invalidating OSHA’s emergency rule, a rule that would have affected about 80 million private-sector workers in an attempt to tame and perhaps eviscerate the global pandemic’s pernicious effects in this country.

The court’s ruling cavalierly holds that courts can ignore textualism, the plain language of a legislatively enacted measure, a practice that could be exercised at the pleasure of the jurists in the future. Indeed, one suspects that the retreat from the doctrine is temporary, and that the justices will revert to textualism when it suits their fancy.

Plain language plunges

Grappling with the plain meaning of words is hardly unusual in jurisprudence. For example, the Supreme Court recently issued rulings on the meaning of terms like “such,” explained the difference between “a” and “the,” and interpreted the meaning of “any,” among other plunges into plain-language adjudication.

The high court’s counterpart here, the Minnesota Supreme Court, also occasionally engages in similar plain-language interpretation. It has done so in recent rulings, offering its view on the meaning of “several” and “at least.” In early January, its subordinate body, the Minnesota Court of Appeals, resorted to the Chicago Manual of Style, the Bible of grammar and the “plain meaning” of words, in a case involving social-media harassment in a bitter dispute between a former couple in Rochester.

In the case entitled Borth v. Borth, the court invoked the hoary doctrine of the last-antecedent rule, wrestling with commas and other punctuation marks to determine the meaning of what constitutes “substantial adverse effect.” The court’s struggle resulted in a ruling that the victim of the rhetorical social media assaults could proceed with her attempt to obtain legal protection from the perpetrator.

Rebuffed ruling

Back to OSHA. The legislative authority that was rebuffed by the Supreme Court’s majority is not ambiguous, vague, or otherwise difficult to discern.

It provides that OSHA can issue an emergency temporary standard to take effect immediately if it makes a two-fold determination: First, that workers are exposed to grave danger from substances or agents determined to be toxic or physically harmful or from new hazards, and two that such an exigent edict is necessary to protect employees from such harm.

The text does not use technical terms that could provoke ambiguity or other uncertainty. It allows, indeed encourages, judges using textualism to give words their ordinary normal meaning, and they may, if warranted, consult a dictionary in doing so.

According to the text’s ordinary meaning, COVID-19 fits the description of posing a grave danger from a physically harmful agent and is a new hazard, which necessitated OSHA to issue an emergency rule to protect employees.

But, not so, say the born-again non-textualists comprising the Supreme Court majority.

Notwithstanding the unambiguous wording, the majority reasoned that OSHA was created solely for workplace safety and that Congress did not intend to give OSHA the authority to adopt broad public health measures. Despite copious rulings espousing the need to adhere to a law’s text and plain meaning, the Supreme Court found the opposite, divining its interpretation of legislative intent, overriding the clear, plain language flowing from the text.

The majority’s reasoning is bothersome not only because it strayed from its past adherence to textualism and plain-language adjudication but also because one of its jurists, Neil Gorsuch, contradicted his own previous textualist interpretations.

For example, two years ago in a decision that appeared to be at odds with Gorsuch’s conservative leanings, he loudly proclaimed himself the torch-bearer for fidelity to Scalia’s textualism. Writing for the majority in a victory for LGBTQ rights, Gorsuch extended the gender anti-discrimination provision of the federal Civil Rights Act to gay and transgender employees. In that case, he ruled that the act’s plain textual meaning prohibits discrimination based on sexual orientation, even if this is not what Congress had originally intended.

But now, in a separate opinion siding with the majority striking down the OSHA rule, and bringing two others with him, Gorsuch opined that the text’s plain language should give way to the court’s subjective conjecture about the legislative intent underlying the plain textual terms.

Gorsuch’s disposal of the law, replacing it with the presumed intent of the solons who enacted it, discredits the textualist fidelity that he espoused in a book he wrote before joining the high court, A Republic, If You Can Keep It, which elevates Scalia’s textualism to a pinnacle in jurisprudence.

Wonder what

But Gorsuch’s failure to follow the law’s plain language is reminiscent of a scene from Lewis Carroll’s “Through the Looking Glass.” In it, Humpty Dumpty regally declares “a word means just what I choose it to mean – nothing more nor less.”  So said the rotund character, before he toppled from his perch on the wall.

One wonders, in looking at how the Supreme Court strayed from strict textualism in the vaccine case, what Minnesota’s high court might do with the parallel state OSHA law, which mirrors the federal measure. Given the way the court in St. Paul has interpreted terms like “several” and “at least” in recent litigation, it probably would arrive at a result quite different from that of the high court in the nation’s capital.

The impact of the high court’s ruling is already in evidence. Within a week of the court’s ruling, a federal judge in Texas entered a nationwide injunction barring the Biden administration’s parallel vaccine mandate for all federal employees.

The ruling relied on the Supreme Court’s OSHA decision in halting the employer vaccination program — although the ruling may not have as much effect because some 97% of the 3.5 million federal workers covered by it reportedly have been vaccinated. But the ruling might have a deleterious effect on future vaccination and booster programs for that workforce. More important, it’s sure to be cited by litigants — and judges — in other forums challenging other governmental COVID-related regulations.

Although private-sector employers remain free to impose their own vaccine protocols, regardless of the illegality of the federal mandate, the Supreme Court ruling has taken the air out of the mandate, and the justices did it by departing from their textual plain-language jurisprudence, replacing it with reasoning that would make Humpty Dumpty stand proud, even after his great fall.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.

Ian Lewenstein
Ian Lewenstein

Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. He specializes in administrative rulemaking and plain language. His comments represent his views alone.