After listening to the oral arguments at the Supreme Court, we think the Court will likely issue an administrative stay to delay implementation of the first ETS deadline by Monday, January 10.  U.S. Solicitor General Elizabeth Prelogar admitted that such a stay might be appropriate if the Court needed some breathing space (as it clearly needs) to decide the important issues presented here.

As we predicted in our last post, the most important issue was whether the OSH Act requires that an ETS be indispensable or essential to be “necessary.” Ohio Solicitor General Benjamin Flowers (representing the States) and Scott Keller (representing business associations) argued that the ETS was not narrowly tailored, as it was broadly targeted to indoor gatherings. They argued that Judge Larsen’s Sixth Circuit opinion was “absolutely correct” in reasoning that just because the ETS is “temporary” doesn’t mean it allows OSHA to exercise more power than Congress gave the agency.  Solicitor General Prelogar responded that OSHA had identified a baseline risk presented by all workplaces with 100 or more employees, and that the challengers had not met their burden in trying to overturn that finding.

The justices did not hide their views.  Justices Breyer, Sotomayor, and Kagan each repeatedly stressed that preventing disease transmission in the workplace is clearly within the scope of the OSH Act, and that the ETS is clearly necessary based on the the human toll of the pandemic.  They focused on recent hospitalization and infection statistics (which are both scary and outside of the administrative record).  Chief Justice Roberts, Justice Gorsuch, and Justice Kavanaugh were keenly interested in the “who decides” question.  (Coincidentally, Chief Judge Sutton has a new book with that exact title.)  They were concerned that the 50-year-old OSH Act was not clear enough for this issue, and that Congress should be required to act on this issue of vast economic and political significance.  Justices Gorsuch and Kavanaugh were interested in whether the Court could invoke the major questions doctrine even without finding the OSH Act ambiguous. Chief Justice Roberts and Justice Thomas appeared to take a more pragmatic view, though they still appeared to favor the challengers. Roberts, in particular, noted the various mandates issued by the Biden Administration and suggested that the Administration was trying to find a “workaround” the legislative process by latching onto old and possibly ill-fitting statutes to target a new national problem that really required Congress to fix.

Justice Barrett cited to Chief Judge Sutton’s opinion to signal her agreement with his point about the tension with using a supposedly temporary ETS to combat a potentially interminable virus that the country could be living with for many years to come. The Solicitor General responded that OSHA would need to go through the notice and comment process and that the necessity of an ETS would always have to be justified by the facts on the ground. Justice Alito, in turn, repeatedly emphasized that the risk presented by COVID-19 today was really only one that unvaccinated individuals had chosen to assume for themselves.  He was especially interested in an administrative stay while the Court considers the merits.

The upshot is that the issue has fallen on predictable lines.  The six conservative justices appear inclined to overturn the ETS, though a handful appeared open to the idea that parts of the ETS were more likely to survive scrutiny than others.  The three liberal justices would clearly uphold the ETS.  We also believe that the more targeted CMS mandate is more likely to survive Supreme Court scrutiny than the broader OSHA mandate.

Alon Farahan also contributed to this article.