By Jake Kaplan
Here are some of the legal news stories making headlines this week:
There are new developments in the ongoing debate over vaccine mandates.
- New York recently instituted a vaccine mandate for health care workers. On Monday, New York Governor Kathy Hochul signed an executive order that would permit National Guard and out-of-state health care workers to fill hospital staffing shortages. New York City is also planning to implement a vaccine mandate for faculty and staff at public schools. The mandate for school staff has faced a number of legal challenges, and on Thursday, a group of teachers petitioned the Supreme Court to intervene. Unless the Court acts, the mandate is set to go into effect on Monday.
- Meanwhile, corporations are also instituting mandates. In August, United Airlines issued a vaccine mandate for its employees. The airline now reports that 96% of its 67,000 U.S. employees have complied with the vaccination requirement (about 2,000 employees requested religious or medical exemptions). United plans to terminate the nearly 600 employees who have refused to be vaccinated and did not seek an exemption.
- Some companies are raising questions about the Biden administration’s vaccine mandate for employers with 100 or more workers. As the companies await the formal rule from the Occupational Safety and Health Administration, it is still unclear who will pay for COVID-19 testing for employees who opt-out of receiving the vaccine, how OSHA will determine which companies are covered by the rule, and whether the rule will include exemptions for employees who work from home. Republican lawmakers are encouraging businesses to push back against the mandate. Texas Representative Chip Roy, one of the most conservatives members of the House, tweeted, “Those businesses should openly rebel against any such rule.”
On Wednesday, the Senate Judiciary Committee held a hearing on the Supreme Court’s shadow docket.
- The term “shadow docket” refers to a kind of decision that is outside of the Court’s normal docket, and it includes emergency orders and summary decisions, which are issued without oral argument. These shorter decisions stand in stark contrast to the court’s “merit” docket, which is what most people associate with the Court. The shadow docket has received a lot of attention recently because the Court has issued many controversial orders from this docket. For example, the Court’s recent order leaving in place Texas’s restrictive abortion law came by way of the shadow docket.
- At the hearing, Democrats argued that the Court’s inconsistent use of the shadow docket process has eroded public confidence in the Court. University of Texas law professor Steve Vladeck testified that “It’s not about the fact that we need an emergency docket … There’s not a lawyer out there who would dispute that. It’s that what the court is doing is having greater impact in ways that are inconsistent.”
- Republicans in the hearing objected to calling the process the “shadow docket,” and instead referred to it as the “emergency docket” or “non-merits docket.” Some Republicans called the name “nefarious.” Senator Ted Cruz said, “Shadow docket, that is ominous. Shadows are really bad, like really, really bad.”