An important development occurred yesterday evening in both the OSHA and CMS vaccine mandate cases pending before the Supreme Court. The Court took the very rare step of scheduling a special hearing for both sets of cases. The hearing will be held on Friday, January 7, 2022.
In the OSHA mandate cases, the Court consolidated two (of several) cases and scheduled a total of one hour of oral argument for the cases. The two groups of challengers in the consolidated cases are a coalition of twenty-seven States led by Ohio and a coalition of twenty-six business associations represented by Lehotsky Keller LLP.
In the CMS mandate cases, the Court consolidated the two (of two) cases currently before it and, as with the OSHA mandate cases, scheduled a total of one hour of oral argument time. The challengers in one of the cases are a coalition of fourteen states led by Louisiana. The challengers in the other case are a coalition of ten states led by Missouri.
The Court’s decision to schedule a hearing on the emergency stay applications pending in both sets of cases is almost without precedent. We say “almost” because the one (and only) time the full Court heard oral argument on an emergency stay application was way back in December 1970 in the classic administrative-law case of Citizens to Preserve Overton Park v. Volpe. Beyond that, individual justices (as opposed to the full Court) have heard oral argument in chambers a handful of times, most recently in 1980 in Blum v. Cardwell. Suffice to say, it is exceedingly rare for the Court to hear oral argument on stay applications. It seems likely the Court did so here as a reaction to the criticism the Court has received recently for deciding key issues on its “shadow docket” without the benefit of oral argument.
The timing of the scheduled arguments is also notable. Recall, they will occur on Friday, January 7, 2022. The following Monday, January 10, 2022, is the date of OSHA’s first implementation deadline. That’s the deadline by which employers with 100 or more employees must, among other things, have a written vaccine policy, require masking for unvaccinated employees, and provide paid-time-off for employees to get vaccinated. The second (and last) deadline for the OSHA mandate is on February 9, 2022. That’s the date by which employers must require unvaccinated employees to begin testing weekly for COVID-19. (As of now, CMS has not offered additional guidance about implementation deadlines for its mandate after the Fifth Circuit struck down a nationwide injunction against the mandate for most States while refusing to stay the injunction for other States.)
It is very possible that the Court will issue a decision at least on the OSHA mandate during the weekend between the January 7 argument and OSHA’s first implementation deadline on January 10. And it seems almost certain the Court will do so before OSHA’s second implementation deadline on February 9.
It’s perhaps worth noting as well that the OSHA cases may feature the debut Supreme Court arguments for the current Ohio Solicitor General, Ben Flowers (representing the State challengers), and for Steven P. Lehotsky (representing the business associations) – both of whom clerked for the late Justice Antonin Scalia. Today, the two filed an unopposed joint motion for divided argument. In an interesting parallel, two advocates made their debut Supreme Court arguments in Overton Park. Will these cases end up, like Overton Park, as staples of American law-school casebooks? Combine the weightiness of the substantive legal issues with the nearly unprecedented procedural posture, and the chances seem decent.