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During arguments over COVID-19 policy, two absent lawyers and more masks on the bench

A View from the Courtroom is an inside look at significant oral arguments and opinion announcements unfolding in real time. 

There are several unusual and noteworthy things about today’s arguments in two cases regarding Biden administration responses to the COVID-19 pandemic.

But a snow day in Washington is not really one of them. After the surprisingly disruptive snowstorm that hit the capital region on Monday, bringing misery to those stuck on I-95 for 24 hours or more, there is fresh snowfall overnight Thursday into Friday. School districts are closed, as is the federal government. That is, the parts controlled by weather decisions of the Office of Personnel Management.

Anyone who has paid attention knows by now that the Supreme Court is an independent branch when it comes to snow days, and the court rarely shuts down even when the rest of the government does. And this morning’s snowfall of 2 to 4 inches seems paltry compared to Monday’s 7 to 14 inches. As one of my colleagues notes, it took more time to clear the snow off her car than it did to commute to the court on the quiet (and quickly cleared) streets.

The unusual aspects of today’s arguments are that they are occurring on a Friday and come from the court’s emergency docket. Earlier this term, the court took the unusual step of ordering full briefing and hearing argument in an emergency request seeking to block Texas’ anti-abortion law. The court did so again in today’s cases: National Federation of Independent Business v. Department of Labor, about the Occupational Safety and Health Administration’s vaccinate-or-test rule, and Biden v. Missouri, about the Department of Health and Human Services’ emergency rule requiring vaccines for workers at health facilities that participate in Medicare or Medicaid.

Just before 9 a.m., a court spokesperson informs reporters that Justice Sonia Sotomayor has elected to participate in today’s arguments from her chambers. It seems clear enough that this is because of the highly transmissible Omicron variant, which has caused COVID cases to spike in D.C. and around the nation. Sotomayor has an underlying condition — diabetes — and since the court returned to in-person arguments in October, she has been the only justice to wear a mask on the bench. It will soon become evident, however, that most of her colleagues have reconsidered their masking practices.

The spokesperson also announces that two of the lawyers challenging the Biden administration policies — Ohio Solicitor General Benjamin Flowers and Louisiana Solicitor General Elizabeth Murrill — will argue remotely. Reuters later reports that Flowers tested positive for COVID after Christmas and that Murrill’s absence was “in accordance with COVID protocols.” (Under the court’s policy, arguing attorneys must take a PCR test on the day before the argument and must argue remotely if they test positive.)

Although Murrill is not in the courtroom, her boss is: Louisiana Attorney General Jeff Landry arrives and takes the third seat at the second-case table, along with lawyers from the Missouri attorney general’s office.

Perhaps because he is a politician, Landry stands to chat with reporters even as the start of arguments is near. He is asked whether Murrill is absent because of a positive COVID test. She is following the court’s pandemic protocols, Landry says.

At 10 a.m., eight justices take the bench as expected. Seven of them are wearing masks. Justice Neil Gorsuch is the only one who isn’t. Gorsuch normally sits next to Sotomayor. Today the chair directly to his right is empty.

Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, and Amy Coney Barrett wear white masks, while Justices Clarence Thomas, Elena Kagan, and Brett Kavanaugh wear black or dark ones that clash a little less with their robes.

Roberts removes his mask to call the first case, and then puts it back on. Thomas and Alito remove their masks once the argument gets going, but they often put them back on for extended periods unless they are asking a question.

Roberts, Kavanaugh, and Barrett remove their masks to ask questions, but put them back on unless they are taking a sip of their beverages.

Breyer and Kagan keep their masks on throughout the argument, even when they pose questions (as Sotomayor does when she is in the courtroom).

Sotomayor is evidently on some kind of direct line from her chambers, because her voice is crystal clear when she is speaking. The audio for the two lawyers appearing remotely is over a telephone line and a bit scratchy. The chief justice, when it is time to call on Flowers, says, “I don’t know quite where to look, but are you still on the line?”

Meanwhile, the white and red lights that signal various things during each lawyer’s argument time light up regardless of whether anyone is standing at the lectern.

The greater use of masks and the necessity for some to participate remotely could easily have occurred at any of next week’s rather routine arguments. The fact that it all happened today, during two cases about federal vaccine policies, underscores that the pandemic has a hold on the court as much as any other institution in America.

During the OSHA arguments, Barrett asks U.S. Solicitor General Elizabeth Prelogar whether the nation is in “an extended pandemic” or has moved to “an endemic.”

It is not purely a rhetorical statement or series of questions, but it might as well be.

“New variants will emerge,” Barrett says. “There might be new treatments, new vaccinations. We have boosters now, right? … So when does the emergency end? I mean, a lot of this argument has been about Congress’ failure to act. Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging?”

Later, Roberts asks Murrill in the HHS argument whether she agrees with an observation made by a federal district judge in the case, in a Nov. 29 opinion, that “COVID no longer poses the dire emergency it once did.”

“Your honor, I think that … those are shifting sands,” Murrill says. “Obviously, COVID conditions can change at any given time. And they have.”

Recommended Citation: Mark Walsh, During arguments over COVID-19 policy, two absent lawyers and more masks on the bench, SCOTUSblog (Jan. 7, 2022, 9:03 PM),