Last week, the Supreme Court blocked the Occupational Safety and Health Administration’s vaccinate-or-test requirement for large private employers. Its reasoning rekindles a long-running and fundamental legal debate about how courts review government action. In their joint dissent, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan made this point explicitly, writing:

Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?

The unsigned majority opinion took a different approach. In one of its most telling passages, it disputed the Biden administration’s argument that the risk of contracting covid is a “work-related danger,” which would fall within the scope of the statute authorizing OSHA to make regulations. “Although COVID-19 is a risk that occurs in many workplaces,” the majority conceded, “it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.”

In other words, the court second-guessed the Biden administration’s motives; the majority believed the agency was using its specific power to regulate occupational safety and health only as a means to impose a more general policy on 84 million American workers.

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