In this post, we take a look at the options facing the U.S. Supreme Court as it considers the challengers’ various emergency applications for a stay, several of which were filed just hours after the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS this past Friday evening (December 17).  At this point, it looks likely the Supreme Court will not rule on the stay issue until early January.  Yesterday morning, Justice Kavanaugh gave OSHA until December 30 to respond to the various emergency motions to stay enforcement of OSHA’s ETS.  That is the same day that the Supreme Court gave the challengers in the CMS mandate case to respond to the Government’s own request to reinstate that mandate.  Having both cases briefed in parallel, when the underlying orders went opposite ways, likely means that the Supreme Court will not act until the stay issue is briefed—i.e., after December 30, though the court will almost certainly decide the issue before OSHA’s new January 10 compliance date.

Waiting until briefing is complete would also be consistent with the Court’s general avoidance of making early decisions in the various vaccine mandate cases, such as refusing to overturn the New York mandate.  It also gives the Supreme Court time to potentially issue an omnibus opinion addressing all of the vaccine-mandate issues currently before it.  As noted, those include the OSHA mandate and CMS mandate.  And those two mandates may soon be joined by the federal-contractor mandate after the Eleventh Circuit (also this past Friday evening) refused the DOJ’s request to stay a Georgia district court’s nationwide injunction of that mandate.

That said, several of the challengers have asked for an administrative stay while the Court determines whether to grant a stay pending review.  And the Supreme Court has been increasingly willing to issue emergency stays over the past couple of years to decide important issues, even though it has been criticized for using its “shadow docket.” So it is by no means impossible the Court will act in the next week.  Employers are understandably worried about investing in compliance programs for a regulation that may be stayed early next year.

As for what the Court will ultimately do, the Supreme Court has already demonstrated its willingness to use its shadow docket to halt a significant pandemic-era federal policy.  That’s what the Supreme Court did very recently in Alabama Assoc’n of Realtors v. Dep’t of Health and Human Serv’s (2021), letting a district court vacate the CDC’s nationwide moratorium on evictions.  In that case, as in the consolidated OSHA cases, the challengers argued that a federal agency exceeded its lawful authority with a regulation it deemed “necessary to control the spread of COVID-19.”  In dissenting from the denial of initial hearing en banc at the Sixth Circuit, Chief Judge Sutton went out of his way to explain why OSHA should lose on the merits.  He enjoys some influence among the Supreme Court Justices, so his analysis may also weigh in favor of a stay.

It’s worth noting that the ETS challengers are also seeking certiorari before judgment, an unusual procedure that would have the challengers leapfrog further proceedings in the lower courts and go straight to the Supreme Court’s merits docket.  Although rarely invoked, the Supreme Court is more willing to consider and grant such requests than in years past.  It did so at least twice when the Trump Administration was blocked by federal courts from its attempts to rescind DACA, Trump v. NAACP (2020), and to add a citizenship question to the census, Dep’t of Comm. V. New York (2019).  And it did so more recently in the Texas abortion case, Whole Woman’s Health v. Jackson (2021).  This suggests that when confronted with exceptionally important, time-sensitive issues, the Supreme Court is more willing than ever to grant cert. before judgment.  No matter how the Supreme Court rules on the challengers’ stay motions, given the important, time-sensitive issues at play in the OSHA cases, the odds seem to slightly favor the Court granting cert. before judgment and hearing (and deciding) these cases on an expedited basis—though perhaps not fast enough for employers to avoid the costs of preparing to comply with the ETS.