MPL General Counsel Corner – Oh Magic 8 Ball, What Will SCOTUS do?

Categories : Business Law
Tags : covid-19
January 10, 2022

The Supreme Court heard oral arguments on Friday related to the Biden vaccine mandate for 100+ employers in the US.  Who knows what will come about?  If you remember the argument over Obamacare, where the Administration argued it was not a tax, while the Supreme Court ruled, through Chief Justice Roberts opinion, the law was okay because it was a tax (not sure how that one came about, but what do I know).  The questions from the Court on Friday also leaves one wondering.  I think my friend and fellow legal colleague, Tedd Kochman from Littler, put together a good perspective from his working group:

“My Vaccination Working Group (and my contacts withing that specialized Group) are, like everyone, CLOSELY watching the SCOTUS/OSHA ETS issue.   Bottom line is that, within our Vaccination Working Group, the consensus seems to be (based on oral argument) below:

  1. Thomas was active in questioning out of the box, which as we all know NEVER happens – he’ll write the opinion or dissent for certain, depending on where the numbers land.
  2. It looks like three hard votes to reimpose the stay (Thomas, Alito, Gorsuch), three hard NO votes to allow the mandate (Kagan, Breyer, Sotomayor).  Barrett and Roberts sound like they are leaning toward a stay, or some direction that OSHA narrow the standard.  Kavanaugh is probably a YES based on major question doctrine.

Again, just some “crystal ball” attempted reading!”

I am sure both sides will not get everything they want.  I guess you could look at the Magic 8 ball to tell you what SCOTUS will do.  What can it hurt?

Here are some other items of interest:

Helpful Coronavirus Resource Pages

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As always, please don’t hesitate to email myself (, Andy Miller (, Christian Miller (, Erik Spurlin ( or anyone in our office with questions or comments.  


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