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‘I’m Just Sort of Stating Facts’: Justice Kagan Smacks Down Right Wing Lawyer Fighting Biden’s Vaccine or Test Mandate



The U.S. Supreme Court is hearing arguments over President Joe Biden’s vaccine or test mandate right now, and it doesn’t look good for the pro-science, common sense, anti-death left.

But Justice Elena Kagan is doing an excellent job of clearly and rationally refuting the far right’s positions.

At issue is whether or not this right wing Supreme Court believes OSHA, the federal government’s Occupational Safety and Health Administration, has the authority to implement the mandate in the workplace, or if the Biden administration overstepped its authority.

Slate’s Mark Joseph Stern, an expert on the Supreme Court, delivers the bad news: “I think it’s exceedingly likely that the Supreme Court will invalidate the mandate. Biggest question is whether it’s 5–4 or 6–3.”

He notes, ironically, “One of the attorneys asking the Supreme Court to block Biden’s vaccine mandates is arguing remotely today because … he has COVID.”

Justice Kagan told a conservative attorney arguing against the mandate that there is no better way to battle the pandemic in the workplace than Biden’s vaccinate or test mandate.

“Why isn’t this necessary to abate a grave risk?” Kagan asks. “This is a pandemic in which nearly a million people have died. It 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, more and more people are getting sick every day. I don’t mean to be dramatic here. I’m just sort of stating facts. And this is the policy that is most geared to stopping all this. There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. So, you know, whatever necessary means, whatever grave means, why isn’t this necessary and grave?”

At one point after the conservative attorney arguing against the OSHA vaccine or test mandate claimed that after the 9/11 terror attack we all just “adjusted” to it and claimed COVID should be treated the same way, Justice Kagan all but blew up.

“The fact that you face at work that risk when you go to work doesn’t make it a workplace risk,” the right wing attorney told Justice Kagan.

“Why not?” Kagan interjected. “I mean, this is a combination of lots of people, all going in to one indoor space, and having to deal with each other for eight hours, ten hours, however many hours a day.”

“You can go to the baseball game or not go to the baseball game,” she continued. “You can decide who to go to the baseball game with but you can’t do any of that in workplaces. You have to be there. You have to be there for eight hours a day. You have to be there in the exact environment that the workplace is set up with, then you have to be there with a bunch of people you don’t know and who might be completely irresponsible. Where else do people have a greater risk than at the workplace?


Our thanks to Stern for posting the audio and his commentary. You can find more clips of today’s arguments on his Twitter page.


Image: DoD photo by Glenn Fawcett via Flickr 

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