One aspect of yesterday’s OSHA vaccination decision really surprised me: its disregard of equitable discretion, to the point of denying that it exists. If taken at face value, this aspect of the Court’s ruling represents a major break from settled practice.
The statutory question was whether OSHA had authority to promulgate a conditional vaccination requirement for many employees. The Court answered in the negative, but that did not end the case. The Court then had to go further and decide whether to grant a stay or injunction of the government’s temporary regulation.
That sort of relief is equitable in nature and usually guided by a series of factors that include not just the merits but also whether there is irreparable injury, whether the balance of equities favors relief, and whether relief is in the public interest. See, eg, Nken v. Holder (2009); Alabama Assoc of Realtors v. HHS (2021) (Kavanaugh, J., concurring). More broadly, equity has long been viewed as a source of judicial discretion, allowing courts to smooth over the law’s harder edges. This is the kind of ancient judicial tradition that any historically minded jurist should take very seriously.
In the OSHA case, there was a strong argument that equity precluded broad relief. If it accepted the executive branch’s view that thousands of lives were at stake, the Court would be hard-pressed to deny that both the balance of equities and the public interest counseled against interim relief.
Yet here is the entirety of what the Court said, with the operational sentences in bold:
The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. See Application in No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32– 33; see also 86 Fed. Reg. 61475. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. OSHA Response 83; see also 86 Fed. Reg. 61408.
It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.
The Court appears to be saying that its “role” is not to consider the “equities.” Importantly, the Court does not claim that any remedial statute has cabined its equitable discretion. Instead, the idea appears to be that the Court, because of its function or nature, cannot “weigh . . . tradeoffs.” Again, however, equity is about doing just that. And equitable discretion is not only recognized in the Court’s case law but part of a tradition that dates back centuries and is named in the Constitution.
Perhaps the passage above is somehow the unfortunate result of hasty writing by justices focused on the merits. The Court may actually have engaged in an equitable analysis, or thought a remedial statute cabined its discretion, or otherwise believed that stays of regulations are exempt from the normal demands of equity. The best reason to adopt one of those heroic readings is that it is hard to believe that the Court would intentionally reject equity in such an elliptical and spontaneous way.
Even if the passage wasn’t intended to repudiate equity, however, the Court does seem to be tilting against it. Weighing hard tradeoffs is the heady work of elected officials, the passage seems to be saying, not humble judges like us.
Yet the choice to curtail judicial discretion, or to promote the law’s determinacy, is itself intensely value-laden. So judicial efforts to rigidify equitable discretion are not actually humble. Even more importantly, equitable discretion is not just a power but a burden, too. Sloughing off equitable principles can therefore liberate judges, including by making judicial decisions seem more self-executing and automatic.
The Court may not have wanted to take responsibility for the discretionary choice to block the regulation. But equity required it to do so.
Re’s Judicata 