The Supremes

[TwiceHorn 31450]

53 minutes ago, Poolflood said:

Look, when I say I'm just asking a question, I'm seriously asking a question.   If the OSHA mandate is within the scope of OSH act and not just a workaround,  why did they limit to companies with 100+ employees and not all employers?   Are there OSHA regulations that limit to employee size.  If it's an issue with all employees,  why the limitation? 

Opinion here.  Majority is only 9 pages.  

The broad delegation to OSHA is as follows:

Quote

the Secretary shall,  , , ,  by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard,

It's kind of oddly worded, because the first thing OSHA was to do was consolidate and enforce any existing federal workplace safety laws, but it includes the power to make new "occupational safety or health standards."

The emergency rule power is not just procedural, but has a substantive limitation

Quote

The Secretary shall provide, . . . for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines --

(A)

that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and

(B)

that such emergency standard is necessary to protect employees from such danger.

On this interlocutory, "shadow docket" ruling, it was held that OSHA exceeded its authority under the emergency temporary standard quoted above because Covid is not unique to the workplace and it is thus a general health regulation.

The various aspects of potential overbreadth got talked about in passing, but were not central to the ruling.

Edited January 16, 2022 by TwiceHorn

[jimmyjazz 45898]

1 hour ago, TwiceHorn said:

But the mandate is limited to the workplace.  It doesn't, as the majority tries to impute, apply to everyone.  It is, in fact, limited to about 1/4 of the US population:  those that work in OSHA-regulated workplaces.

While I haven't put the thought into it you have, and certainly don't have the legal background you do, I think this is where I fall.  I don't understand why it's off-limits for OSHA to issue workplace regulations in response to a community-wide disease.  I mean, OSHA limits noise levels in the workplace such that employees are allowed to not use hearing protection, but those restrictions don't extend (for instance) to clubs and other high-decibel environments.

[TwiceHorn 31450]

9 minutes ago, jimmyjazz said:

While I haven't put the thought into it you have, and certainly don't have the legal background you do, I think this is where I fall.  I don't understand why it's off-limits for OSHA to issue workplace regulations in response to a community-wide disease.  I mean, OSHA limits noise levels in the workplace such that employees are allowed to not use hearing protection, but those restrictions don't extend (for instance) to clubs and other high-decibel environments.

Yeah, the "not unique to the workplace" doesn't really hold up as a useful rule.  It's an Anton Chigurh/Carson Wells rule.

[Poolflood 845]

28 minutes ago, TwiceHorn said:

Yeah, the "not unique to the workplace" doesn't really hold up as a useful rule.  It's an Anton Chigurh/Carson Wells rule.

But if it's not unique to the workplace how does OSHA contro.  I get the WE NEED TO DO SOMETHING NOW, but at what cost to federal overreach.   But lol I'm still bitching about wickard.  

[wildcat09 29349]

Literally nothing is unique to a workplace.

[jimmyjazz 45898]

30 minutes ago, Bravo said:

Read the opinion. This specific point is addressed. You don't have to take the ear protection home with you. An injection is beyond workplace. 

Well, that's a stupid point.  "Taking the injection home with you" doesn't expose anyone to any harm.

[DDD Dad 14332]

Read the opinion. This specific point is addressed. You don't have to take the ear protection home with you. An injection is beyond workplace. 

Listen to Bravo. He’s a constitutional lawyer.

[Poolflood 845]

41 minutes ago, jimmyjazz said:

Well, that's a stupid point.  "Taking the injection home with you" doesn't expose anyone to any harm.

Your assumption is that no vaccine has had any deleterious effects on the vaccinated.   When, unless I'm incorrect,  every vaccine has had some measurable side effect, however minor on the population as a whole.

[jimmyjazz 45898]

Just now, Poolflood said:

Your assumption is that no vaccine has had any deleterious effects on the vaccinated.   When, unless I'm incorrect,  every vaccine has had some measurable side effect, however minor on the population as a whole.

That's not my assumption at all.  "Taking it home" is a non-starter.  Deleterious side effects would exist whether the employee were an 8/5 guy or a 24/7 guy (think oil rig).  The hours of employment shouldn't matter -- the safety on site is what matters.

In other words, get a different job.  This rejection of the OSHA angle is stupid.  It's completely legitimate and falls well within OSHA's purview of ensuring safety on the job.

Hearing protection can expose one to danger on the job, but OSHA still requires it.  If you can't hear the forklift "reverse" beep, you could get run over.  You still have to wear hearing protection in high-noise environments.  Nothing is foolproof.  Classic "don't let great be the enemy of good" stuff here.

[Captainant 27653]

2 hours ago, Poolflood said:

Look, when I say I'm just asking a question, I'm seriously asking a question.

Just so you know, this is a typical trolling tactic. "Just asking questions" is a common misinformation tactic used to poison the well and derail a discussion.

I don't think you're trolling, and please don't take this as an accusation, but you're unintentionally using some overloaded language

[elfenix 34230]

1 hour ago, Bravo said:

Read the opinion. This specific point is addressed. You don't have to take the ear protection home with you. An injection is beyond workplace. 

then take a test. 

[WBT 20561]

50 minutes ago, Captainant said:

Just so you know, this is a typical trolling tactic. "Just asking questions" is a common misinformation tactic used to poison the well and derail a discussion.

I don't think you're trolling, and please don't take this as an accusation, but you're unintentionally using some overloaded language

And yet asking questions to educate oneself is an even more common tactic.  It's a conundrum.

[NWBuck 8552]

I can see "it's not work related, because it can impact you at home" being an argument. Not that I agree, but I can understand it.

But since we're all working from home, does that matter anymore? Not in Germany, ironically enough...

[JimmyJames 12271]

Bravo trying to fuck up every single thread with pure idiocy. 

[TwiceHorn 31450]

2 hours ago, Poolflood said:

But if it's not unique to the workplace how does OSHA contro.  I get the WE NEED TO DO SOMETHING NOW, but at what cost to federal overreach.   But lol I'm still bitching about wickard.  

How about if it's a rule implemented by employers and imposed on employees relating to work?

Like, you can't come to work if you don't have a vaccine or a test?

There may actually be some validity to the notion that the rule/mandate is overbroad, but that wasn't the basis of decision here.

[jimmyjazz 45898]

4 minutes ago, TwiceHorn said:

How about if it's a rule implemented by employers and imposed on employees relating to work?

Like, you can't come to work if you don't have a vaccine or a test?

There may actually be some validity to the notion that the rule/mandate is overbroad, but that wasn't the basis of decision here.

All states have "at will" employment policies, but the devil is in the exemptions.  I'm pretty damn sure any employer in Texas could fire an employee for drinking on the job, or even coming to work under the influence.  (Not sure how that would be defined.)  I'm not sure I have a point, other than employers have a lot of leeway in mandating employee behavior on the job.

[Bookman 4639]

Did they make up that unique to the workplace rule? I don't see it in the text.

[Poolflood 845]

3 hours ago, jimmyjazz said:

Well, that's a stupid point.  "Taking the injection home with you" doesn't expose anyone to any harm.

 

2 hours ago, jimmyjazz said:

That's not my assumption at all.  "Taking it home" is a non-starter.  Deleterious side effects would exist whether the employee were an 8/5 guy or a 24/7 guy (think oil rig).  The hours of employment shouldn't matter -- the safety on site is what matters.

In other words, get a different job.  This rejection of the OSHA angle is stupid.  It's completely legitimate and falls well within OSHA's purview of ensuring safety on the job.

Hearing protection can expose one to danger on the job, but OSHA still requires it.  If you can't hear the forklift "reverse" beep, you could get run over.  You still have to wear hearing protection in high-noise environments.  Nothing is foolproof.  Classic "don't let great be the enemy of good" stuff here.

If it's a non-starter why did you start with it?  

[Poolflood 845]

2 hours ago, Captainant said:

Just so you know, this is a typical trolling tactic. "Just asking questions" is a common misinformation tactic used to poison the well and derail a discussion.

I don't think you're trolling, and please don't take this as an accusation, but you're unintentionally using some overloaded language

Which is why I said that.  I don't have the time or energy to troll.  

[Poolflood 845]

1 hour ago, TwiceHorn said:

How about if it's a rule implemented by employers and imposed on employees relating to work?

Like, you can't come to work if you don't have a vaccine or a test?

There may actually be some validity to the notion that the rule/mandate is overbroad, but that wasn't the basis of decision here.

If it's a rule imposed on employment then that's a negotiation between those 2 parties.  

If work-place in and of itself is the issue, why stop at 100 employees?  Does osha not have regulations re asbestos for ALL workplaces regardless of size?

[Bookman 4639]

12 minutes ago, Poolflood said:

If it's a rule imposed on employment then that's a negotiation between those 2 parties.  

If work-place in and of itself is the issue, why stop at 100 employees?  Does osha not have regulations re asbestos for ALL workplaces regardless of size?

They stop at 100 due to a cost/benefit analysis.

[TwiceHorn 31450]

1 hour ago, Bookman said:

Did they make up that unique to the workplace rule? I don't see it in the text.

The idea is expressed crossing pp. 6-7 and further on p. 7.  The "unique to the workplace" lingo came out of the 5th Circuit decision, I think.

[Bookman 4639]

Yes I read that. So they made it up then?

[Poolflood 845]

21 minutes ago, Bookman said:

They stop at 100 due to a cost/benefit analysis.

Would seem to undercut the rationale.  I doubt there would be such a reason for asbestos handling/exposure. 

[jimmyjazz 45898]

5 hours ago, Poolflood said:

If work-place in and of itself is the issue, why stop at 100 employees?  Does osha not have regulations re asbestos for ALL workplaces regardless of size?

Very small businesses fall below OSHA guidelines.  Once they hit a certain threshold, I believe penalties are diminished until they reach another employment bar.

[Bookman 4639]

8 hours ago, Poolflood said:

Would seem to undercut the rationale.  I doubt there would be such a reason for asbestos handling/exposure. 

The analysis is the rationale.

[wildcat09 29349]

Imagine being a bigger asshole than Sam Alito.

[Brisketexan 105095]

42 minutes ago, wildcat09 said:

Imagine being a bigger asshole than Sam Alito.

I mean, you almost have to admire how strongly they've embraced the "cartoon villain" role.  Jesus.  Imagine being in such a position, and being asked, as a professional courtesy, to just wear a mask around your colleague.  And you say "no, I have a right to be an asshole, and I'm going to exercise it loud and proud." What the everloving fuck?

[DigglerontheHoof 21186]

that's pretty fucking incredible.  what an asshole.

[OneOfTheOutOfFocusGuys 2072]

i said early on with the kavanaugh kerfuffle we'd end up hating gorsuch more.

[wildcat09 29349]

26 minutes ago, OneOfTheOutOfFocusGuys said:

i said early on with the kavanaugh kerfuffle we'd end up hating gorsuch more.

Well Gorsuch has clearly always wanted to be the new Scalia, while Kavanaugh wants to be liked. They're both despicable, but in different ways.

[hayden_horn 11362]

6 minutes ago, wildcat09 said:

Well Gorsuch has clearly always wanted to be the new Scalia, while Kavanaugh wants to be liked. They're both despicable, but in different ways.

scalia would've worn the fucking mask, because he damn well wouldn't have gone remote.

imagine being such an asshole that you won't make an accommodation for one of your 8 colleagues. 

and then imagine that scalia wouldn't have been such an asshole as you.

[wildcat09 29349]

3 minutes ago, hayden_horn said:

scalia would've worn the fucking mask, because he damn well wouldn't have gone remote.

imagine being such an asshole that you won't make an accommodation for one of your 8 colleagues. 

and then imagine that scalia wouldn't have been such an asshole as you.

Gorsuch didn't go remote, Sotomayor did.

[Chuckie Finster 22694]

8 minutes ago, Brisketexan said:

I mean, you almost have to admire how strongly they've embraced the "cartoon villain" role.  Jesus.  Imagine being in such a position, and being asked, as a professional courtesy, to just wear a mask around your colleague.  And you say "no, I have a right to be an asshole, and I'm going to exercise it loud and proud." What the everloving fuck?

Man, it's just fucking depressing.  I know this is preaching to the choir, but how do we get back from this?   

When people would come over to visit our newborn children, we'd always request that they wash their hands before holding the baby.  The idea that one of them could decline this request honestly never even entered our heads.  

[hayden_horn 11362]

5 minutes ago, wildcat09 said:

Gorsuch didn't go remote, Sotomayor did.

yeah, i know, but my point is that scalia would've worn the fucking mask. but also, as much as i take issue with a ton of his decisions, he was a man of honor. so if he didn't really want to wear the mask, his choice would've been "go remote or wear the mask," not "make the medically at risk person go remote or wear the mask."

[wildcat09 29349]

Naw, Scalia was just an asshole. You’re buying the romanticized version of him a lot of people sold. He was the original judicial alt-right troll before it was cool and absolutely would’ve refused to wear a mask.

[hayden_horn 11362]

1 minute ago, wildcat09 said:

Naw, Scalia was just an asshole. You’re buying the romanticized version of him a lot of people sold. He was the original judicial alt-right troll before it was cool and absolutely would’ve refused to wear a mask.

i think if ruth had asked him nicely, he would've done it. he was a legal asshole, and a kind of at large asshole, but i don't think he was a personal asshole to people he respected.

granted, gorsuch probably has no respect for anyone else on the court, but that's kind of my point. 

[Ghost of LL 15531]

This is an institution that prides itself on civility.  I mean, the Court stresses "civility" perhaps over any other virtue.  And that's doubly true of anything that is made public.

If this is the kind of thing that is being made public, can you imagine how bad it is back in chambers?

[jimmyjazz 45898]

Civility is a fading social construct.

[Brisketexan 105095]

9 minutes ago, jimmyjazz said:

Civility is a sign of weakness, to be denigrated at every opportunity.  One cannot own tha libz by being civil.

FIF America 2022.

[tx 3 putt 76905]

Maga crowd will eat this up !!!

[DDD Dad 14332]

1 minute ago, tx 3 putt said:

Maga crowd will eat this up !!!

Fuck your feelings!

[tx 3 putt 76905]

1 minute ago, DDD Dad said:

Fuck your feelings!

[bolverk 29660]

There's a piece in Slate on the issue that came out a few days ago that a) shows how tremendously hypocritical Gorsuch's actions are and b) suggest bigger problems with SCOTUS based on grounds of judicial independence. Some excerpts for you lawyers:

Quote

 

Plenty of speculation is bouncing around Twitter, where people are quick to pile on with the inference that Gorsuch just doesn’t care about exposing his colleagues to a lethal disease and that this is a liberal/conservative mask split. As legal reporter Cristian Farias noted: “A couple of years ago, Neil Gorsuch wrote a whole book lamenting the loss of civility in public life. In it, he quotes a rule George Washington is said to have learned as a child: ‘Bedew no man’s face with your spittle, by approaching too near him when you speak.’ ” 

*****

For decades, court reformers—and most recently President Joe Biden’s commission on court reform—have noted that the court’s financial and ethical rules are purely advisory, that nobody needs to follow them and that the justices will not enforce them against one another. When it comes to adopting a set of rules governing how the nine justices conduct themselves when giving speeches, or engaging in public activities, each of the nine is a law unto themselves. Efforts to remedy that, in the interest of making the court more accountable and also more legitimate, are persistently rebuffed. To extend Marcus’ analysis about Gorsuch, nobody is the boss of Gorsuch because nobody is the boss of any of the justices.

Two short weeks ago, in his annual state of the judiciary report, Roberts flicked obliquely at the connection between public confidence in the court and the need for judicial independence. Unsurprisingly, and in keeping with much of the lawyerly discourse around judicial behavior, he urged that public confidence in the court demands judicial independence at all costs. Judicial independence, in other words, is an end in itself, and public regard for the institution is, at best, a second-order concern. Roberts thus used the national decline in confidence in the courts and the existence of financial misconduct and workplace “incivility and disrespect” on the federal bench to insist that the courts themselves could handle it, and to decry efforts to exert “inappropriate political influence” on the courts’ procedures. Instead, he urged that “decisional independence is essential to due process, promoting impartial decision-making, free from political or other extraneous influence.” Roberts cited Chief Justice William Howard Taft, saying that he “was prescient in recognizing the need for the Judiciary to manage its internal affairs, both to promote informed administration and to ensure independence of the Branch.” Even the most obvious and necessary efforts to regulate judicial conduct are forever deemed a threat to the Supreme Court justices’ and their independence.

*****

The real issue is that the court as an institution has put a mask rule into effect, has allowed justices to evade it, has failed to offer any coherent explanation for why one justice has been exempted, and has thus launched another toxic and possibly unnecessary public debate. The court hasn’t just declined to be transparent about the application of its own rules to itself; it also feels no obligation to explain the breach to anyone. Into that silence falls institutional criticism that further erodes public confidence.

One way to describe this is “judicial independence”—John Roberts’ pledge to the nation that the justices answer to nobody but are driven by the imperative they take upon themselves, in the words of Taft, “the duty to remove, as far as possible, grounds for just criticism of our judicial system.” 

*****

If the justices have no obligation to be ethical, or even civil, around a pandemic that has killed more than 800,000 Americans, do they at least have the burden to explain? Evidently not.

The other word for this behavior is “judicial immunity,” an immunity that requires no explanation.

 

 

 

[Immaculate Vibes 114]

3 hours ago, Brisketexan said:

I mean, you almost have to admire how strongly they've embraced the "cartoon villain" role.  Jesus.  Imagine being in such a position, and being asked, as a professional courtesy, to just wear a mask around your colleague.  And you say "no, I have a right to be an asshole, and I'm going to exercise it loud and proud." What the everloving fuck?

 

3 hours ago, DigglerontheHoof said:

that's pretty fucking incredible.  what an asshole.

 

[wildcat09 29349]

Justice Gorsuch's law clerk defending his boss is not more reliable than Nina Totenberg.

[Chuckie Finster 22694]

29 minutes ago, Immaculate Vibes said:

 

 

LMAO, dude posts a 15 tweet whiny thread that... confirms Stern's report.  Republican party in a nutshell.  No surprise Immaculate Vibes fell for it.

[bolverk 29660]

25 minutes ago, wildcat09 said:

Justice Gorsuch's law clerk defending his boss is not more reliable than Nina Totenberg.

Yeah, it's pretty well documented across a variety of media that Gorsuch was the only justice to not wear a mask throughout oral arguments. It's also incontrovertible that she wasn't physically present.

Here's the thing: Mike Davis is no longer a law clerk for Gorsuch, so how the fuck would he have personal knowledge if there were an informal request made by Roberts to the other justices out of common courtesy? The dude is an unashamed partisan hack while Totenberg's reporting is always fucking solid.

 

Quote

 

Conservative Group Wants to Bring ‘Brass Knuckles’ Approach to Judicial Fray

WASHINGTON — In the latest escalation of partisanship surrounding federal judicial nominations, an advocacy group is being created on the right to maintain momentum behind the Republican judicial juggernaut and prepare for the inevitable next Supreme Court fight.

Named the Article III Project for the section of the Constitution that established the judiciary, the organization will be led by Mike Davis, a former Republican Senate and White House aide who was a central figure in the confirmations of Justices Neil M. Gorsuch and Brett M. Kavanaugh.

Mr. Davis, 41, is known as a take-no-prisoners conservative eager to challenge the left with hardball tactics. He now intends to apply those techniques to judicial confirmations from the outside after his inside work on behalf of Justices Gorsuch and Kavanaugh and scores of federal judicial nominees seated on the bench since the start of the Trump administration.

“What I want to do with the Article III Project is take off the gloves, put on the brass knuckles and fight back,” said Mr. Davis, an Iowa native who was the chief nominations counsel for Senator Charles E. Grassley, an Iowa Republican who was the chairman of the Judiciary Committee until this year.

The idea that he has had gloves on might surprise some opponents who found him a fierce and combative adversary, a Republican enforcer who worked to limit testimony critical of nominees and fought with Democrats over the release of documents during the Kavanaugh hearings. He has also on occasion provoked a backlash with incendiary tweets.

Justice Gorsuch privately called Mr. Davis “the general” of his confirmation while Justice Kavanaugh referred to the former Senate aide as “a warrior” on his behalf. Senator Mitch McConnell of Kentucky, the majority leader, singled him out for special praise after the successful vote to confirm Justice Kavanaugh following the tumultuous hearings. Former Senator Orrin G. Hatch of Utah praised Mr. Davis as the “tip of the spear” in that clash.

Mr. Davis said he had already banked significant seed money for his organization from donors he chooses not to disclose. He hopes to raise at least $1 million a year to bring on board a small staff of lawyers and communications professionals. He said his plan was not only to push for conservative judicial nominees, but also to come to the defense of sitting justices and judges facing attacks and calls for impeachment from the left. He pointed to the furor over the plan for Justice Kavanaugh to teach an overseas summer law school program for George Mason University, ridiculing “cupcake undergraduates” for raising a fuss.

“It is not only helping the nominee get through this process but to protect judges once they are on the bench,” he said in an interview. “Once they are on the bench, they can’t fight back. They are sitting ducks.”

As the fight over abortion rights intensifies and the Trump administration and Senate Republicans focus on relentlessly filling court vacancies, both parties have been ramping up their court-related political messaging. And the future of the judiciary is certain to be a central topic in the 2020 campaign. Leading Democrats are already calling for changes in the makeup of the Supreme Court, including the possibility of enlarging it or putting term limits on justices.

The new group, abbreviated A3P, is partly a response to the creation of Demand Justice, a progressive organization trying to raise Democratic intensity over judicial conflicts. It was formed after Mr. McConnell stonewalled President Barack Obama’s nomination of Judge Merrick B. Garland to the Supreme Court in 2016 and Mr. Trump’s subsequent election.

Mr. Davis said he saw his emerging organization as a complement to — not a competitor of — other conservative judicial advocacy groups such as the Judicial Crisis Network and said they would work in concert.

He first encountered Justice Gorsuch in the administration of George W. Bush and then clerked for the judge when he joined a federal appeals court in Colorado. He subsequently opened a private law practice in Denver. When the newly elected President Trump nominated Justice Gorsuch to the Supreme Court in January 2017, Mr. Davis assembled a volunteer team of former clerks and allies who swooped in to assist with the confirmation after the nominee clashed somewhat with his Washington handlers.

Mr. Davis clerked again for Justice Gorsuch at the beginning of his Supreme Court tenure. He then joined Mr. Grassley’s staff as the Senate and the White House — under the direction of the counsel at the time, Donald F. McGahn II — began an aggressive judicial push that has put more than 100 judges on the district and appeals courts at a record-setting pace. After Justice Anthony M. Kennedy retired, Mr. Davis became staff leader in winning the confirmation of Justice Kavanaugh, aggressively countering Democrats and pushing back on the allegations against the nominee.

During that fight, Mr. Davis was criticized for a tweet that promised Republicans would get the nominee confirmed despite sexual misconduct allegations, but he deleted it after Kavanaugh opponents said it showed he did not take seriously the sexual assault accusations of Christine Blasey Ford. In recent days, he came under fire for retweeting a 2016 image from The Onion that showed a blood-spattered Mr. McConnell holding the severed head of Judge Garland outside the Capitol. He quickly took it down.

“When I realized it didn’t have the Onion reference, I immediately deleted that tweet,” he said. “It was stupid of me, and I have the utmost respect for Judge Garland.”

Despite criticism that such tactics only increase the mounting political toxicity around judicial nominations, Mr. Davis embraces his brash, loose-cannon reputation and points to his success with judicial confirmations — a record he will no doubt emphasize in getting his group off the ground. “Call it what you want,” he said, “but I think it is a loose cannon that happens to fire pretty accurately.”

 

 

[Anastasis 23469]

Dick move. 

[Ghost of LL 15531]

Just now, Anastasis said:

Dick move. 

Well, we have a party that has turned assholery into some form of civic virtue.  So I would imagine that among most Republican partisans, Gorsuch's actions are seen as quite the opposite of a "dick move."