“Oyez, oyez, oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” The Marshall of the Supreme Court calling the Court to session.
Recently, the Supreme Court of the United States heard oral arguments regarding whether the Executive Branch of the Federal Government has Constitutional authority to mandate a medical procedure linked to a “grave danger” where public funds are not involved, and also whether the Executive Branch of the Federal Government has Constitutional authority to mandate a medical procedure linked to a “grave danger” where public funds are involved.
The nature of this grave emergency is the COVID-19 virus and its variants. The medical procedures are vaccinations, possibly including boosters, for COVID-19 and/or testing and masking, and Constitutionally acceptable exceptions to these mandates. The Court is being asked to stay (stop) the mandates temporarily until lower federal courts and state supreme courts have had a chance to rule on these matters and an appropriate case for appellate review is brought to the Supreme Court and the Court agrees to hear it. Vaccine or testing mandates are to begin on February 9, 2022.
The public had the opportunity to listen to these arguments on public television or radio. For three and one-half hours, the Justices made comments and asked questions of attorneys representing both those states and businesses seeking the stay and the Solicitor General of the United States seeking to have the mandates go forward. Among them:
Justice Alito wanted to know if the “grave danger” mandates were necessary to protect the already vaccinated.
Justice Gorsuch wanted to know if Congress should speak to this issue under the “Major Questions Doctrine” that requires Congress speak directly on an important issue and not transfer policy authority to the federal Executive Branch that includes administrative agencies.
Justice Thomas wanted to know if this was not part of the “police” powers of the states regarding the health, welfare, and morals of its citizens.
Justice Sotomayor wanted to know if the “grave danger” mandates were really about risk/risk trade-offs.
Justice Roberts wanted to know if the federal OSHA (Occupational Safety and Health Administration) is the right bureaucracy to issue the mandates as they regulate the workplace and the mandates would regulate workers outside of the workplace.
Much was made in the media about Justice Sotomayor citing statistics that were, in fact, untrue. Some used the word “lie” relative to her statements. An accusation like this would be a far greater danger to our Republic than the virus itself. A Justice of the United States Supreme Court may state facts that can be shown to be in error, but we have to believe that no Justice would deliberately lie during oral arguments or in any capacity regarding his or her work.
What do We the People need to understand about the Supreme Court and this issue in particular?
First, the Supreme Court of the United States is an enigma wrapped in a mystery. It is intended to be so by the Founders. After several trials, nine seems to be the right number of Justices, as they function both as individuals and as a group. Individually, each is like any other human being. Collectively, they fiercely protect their institution and the mystery that surrounds it. Collegiality is the coin of their realm. Protection of the Constitution itself is their primary duty. They serve for life or voluntary retirement as protection from politics, but also in the hope that time increases each Justice’s wisdom and understanding of the law. Theirs is a life of deep study and contemplation.
Every Justice is appointed by a political President who represents the Executive Branch of the Federal Government and each must be confirmed by part of the Legislative Branch, as well. Each has a view that comports with the President or he or she would not be appointed. But when the robe of power goes on the body of a Justice in the “robing room”, we have to have faith that something is transformed in that person – a non-partisan, intellectually deep attachment to the entire Rule of Law and to the history, philosophy, and theology that undergirds that Law. This is the Doctrine of the Black Robe.
Second, the Supreme Court has ultimate authority regarding Constitutional rights, or rights that come from Positive Law, but they have no authority over unalienable rights that come from God or Natural Law. “Liberty is not a matter of government grace,” a late federal circuit judge tells us. We call the state into existence to protect these inherent rights yet the state represents the greatest threat to them. The irony of ironies.
One hopes if oral arguments are heard on the merits of the federal administrative state over medical decisions between a citizen and his or her physician, that one or more of the Justices will bravely inquire about the Rights of Man versus the Power of the State. Is this issue outside the power of any government, federal or state, to mandate rather than to strongly urge? Where does the unalienable right to personal Liberty begin and the coercive power of the State end? Is there a difference, in this regard, to the power of the federal government versus the power of state and local governments?
Regardless, our Constitutional system includes irony, mystery, and faith. As the Marshall of the Court calls to us, “God save the United States and this Honorable Court.” We are ever grateful for their service to the country – normal human beings – elevated by chance and accomplishment to something higher than themselves.
