The U.S. Supreme Court is seen on Jan. 19, 2021, in Washington. Credit: Mariam Zuhaib / AP

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The U.S. Supreme Court looks like a divided legislature.

Seven of the nine justices expressed their sharply differing opinions in two recent COVID vaccination decisions. Only Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, joined in the majority in both cases, and they alone refrained from making a comment.

Despite appearances, the central issue was not COVID vaccination. The rulings were about the role of the federal government and of the court itself. They were political, but more about personal beliefs than party affiliation.

The court decides on what the law means, applying long-established rules of interpretation. Justices are influenced by their views in applying those rules. These views may go beyond partisan politics; they may be based on broader conservative or liberal ideology.

Justices making “political” decisions is nothing new. John Marshall, the early and perhaps the most influential chief justice, favored a strong federal government. Between 1801 and 1835, his decisions always promoted this objective, aimed at influencing the young nation’s political development.

In both recent court decisions, conservatives and liberals each expressed their political judgments. All agreed on the serious threat to public health and the high personal cost of COVID-19, but that’s all.

In one case, six conservative justices interpreted the law narrowly, ruling that Congress had not given the Occupational Safety and Health Administration the power to require vaccinations in large companies. They opposed an administrative agency exercising broad power without clear congressional approval.

Congress itself might have adopted such a mandate or given OSHA that explicit power. In effect, the court found that Congress could have acted, but didn’t. The court has decided in major cases, like   Roe v. Wade, when Congress didn’t act, but this time the majority would not fill in the blank.

The three liberal dissenters had no doubt that Congress had given OSHA the necessary authority. They concluded that the COVID crisis was so acute that the court could interpret the law to help halt the spread of the virus.

The second case produced a majority of the three liberals, plus Roberts and Kavanaugh. A simple majority of five controls the court. They ruled that federal funding for hospitals gave the government power to attach conditions, including a vaccination requirement for the medical staff.

The conservative dissenters opposed a role for the federal government and found no authority for Congress to attach such conditions. Kavanaugh split from his fellow conservatives and immediately came under   blistering right-wing attacks for his independence.

In effect, conservative justices had turned against Marshall, the historic conservative who had promoted a strong federal government. Instead, they asserted that individual states have the power to fight the virus.

Behind its decisions, the court wrestled with the question of whether Congress was doing its job. Its debate about what Congress meant highlights the failings of the legislative branch, which is supposed to set policy. It’s no mistake that   its powers compose Article I of the Constitution.

In fact, Congress is not a co-equal branch; it is the first among equals. Article III assigns the Supreme Court judicial powers, but “with such exceptions and under such regulations as the Congress shall make.” It can also limit presidential powers.

When it fails to pass laws addressing public issues, Congress leaves it to the president and the court, increasing their political power. When the justices are drawn into making major political decisions, the court’s neutral objectivity may suffer.

If people believe it is just another political body, the court’s authority can be weakened. Roberts has been trying to maintain respect for the court as an impartial body that should stay out of politics. His positions in the two cases might be intended to reveal his sense of judicial nonpartisanship.

Both decisions were “by the Court” and unsigned. Technically, they did not end the cases, but left the final blows to lower courts. The court increasingly uses such quick procedural decisions, known as its   “shadow docket” to make major rulings. Chances for careful consideration among the justices are lost.

The media reported that the result of the decisions was to limit the scope of President Joe Biden’s vaccination policy, which could have political effects on his presidency. But it paid less attention to the implications of the decisions that went beyond his political fate or even vaccinations.

The ongoing inability of Congress to resolve issues by making tough decisions undermines the democratic system. Much of the reason is the Senate filibuster, which halts bills by requiring 60 votes to consider them. Only a simple majority of senators is needed to approve the lifetime appointments of new judges.

If the court increasingly serves as the federal legislature, then the main purpose of presidential and congressional elections may come down to picking the people who pick the justices.    


Gordon Weil, Opinion contributor

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.