Two lawyers argue against vaccine mandate at SCOTUS remotely due to Covid cases

Sign up for the daily Inside Washington email for exclusive US coverage and analysis sent to your inbox

Get our free Inside Washington email

Please enter a valid email address

Please enter a valid email address

SIGN UP

I would like to be emailed about offers, events and updates from The Independent. Read our privacy policy

A pair of lawyers who will argue in the Supreme Court against the Biden administration's coronavirus vaccine mandate had to do so remotely after they tested positive for Covid-19.

Reuters reports that Liz Murrill, the Solicitor General of Louisiana, and Ohio's Solicitor General Benjamin Flowers were making their cases before the court via webcam after they tested positive for the virus.

Mr Flowers is experiencing "exceptionally mild" Covid-19 symptoms, according to his lawyer. However, he tested positive in a PCR test, which bars him from appearing before the Supreme Court in person based on the court's guidelines.

The lawyers are arguing against Joe Biden's federal vaccine mandate, which he enacted last year. Specifically, the lawyers are targeting two mandates that impact private and healthcare workers in institutions that receive certain federal funding.

The first, passed by the Occupational Safety and Health Administration, requires private companies with more than 100 workers to require vaccinations or regular Covid-19 testing and mask usage at work.

The second is from the Centres for Medicare and Medicaid Services, which requires all healthcare workers whose employers receive certain federal funding to be vaccinated.

Republican pushback to the mandates claim they are examples of government overreach into state authority and private businesses.

Supreme Court Justice Sonia Sotomayor also participated remotely, though a court spokesman told Politico that she was "not ill”.

In the hearing on Friday, several of the conservative justices appeared sympathetic to business interests and Republican-backed arguments against the mandates.

The liberal justices were fully opposed to the arguments against the mandates, citing the latest wave of infections in the US caused by the Omicron variant. US hospitals are reporting that they are at capacity due to unvaccinated people falling ill.

Health experts believe that the Omicron variant's peak will occur sometime in January.

"There are three-quarters of a million new cases yesterday. … That’s 10 times as many as when OSHA put this rule in," Justice Stephen Breyer, who was appointed by former President Bill Clinton, said. "The hospitals are today, yesterday, full almost to the point of the maximum they’ve ever been with this disease. … I would find it unbelievable that it could be in the public interest to suddenly stop these vaccinations."

Justice Elena Kagan, appointed by former President Barack Obama, said that the pandemic is "by far the greatest public health danger that this country has faced in the last century”.

"More and more people are dying every day. … There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves," she said.

The conservative justices questioned the methods by which the mandates were passed. Justice Clarence Thomas, appointed by former President George H W Bush, argued that vaccines are available and that the government "could have had notice and comment" rather than passing the mandates as an "emergency temporary standard”.

By the end of the deliberations, it sounded as though the conservative justices would block the OSHA mandate but likely allow the mandate affecting healthcare workers.