The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the past ten days, there has been a flurry of activity with regard to the OSHA mandates. First, on December 13, the Eighth Circuit declined to stay a trial court injunction that blocked the mandate with respect to Medicaid and Medicare programs. Second, on December 15, the Fifth Circuit upheld an injunction against the Medicaid/Medicare mandate with regard to fourteen Plaintiff states. Third, on December 17, a divided panel of the Sixth Circuit upheld the OSHA mandate. (In a quirk of timing, Judge Sutton and Bush's dissents from denial of en banc actually came out before the panel decision.)
Almost immediately, the Plaintiffs in these cases filed emergency applications with the Supreme Court. In all cases, Circuit Justices Alito and Kavanaugh requested responses by December 30. This pace was leisurely by shadow docket standards. But the briefing schedule was a head fake.
This evening, the Court jabbed all of these matters on the rocket docket. In two orders, the Court scheduled oral arguments for Friday, January 7. This pace is blistering. Barely five days elapsed since the applications trickled up from the Sixth Circuit. And the Justices will hear the cases barely a week after briefing concludes.
This case is moving fast, but not quite as fast as the S.B. 8 cases. The United States filed its application on October 18. Cert before judgment was granted on October 22. And oral arguments were set for November 1. Only 14 days between the application and the arguments. A decision was rendered on December 10. Now, the Court gave itself a cushy three weeks between application and argument. But the decision will have to come sooner. Still, I think the Court is using the rocket docket as an alternative to the shadow docket. We saw this dynamic with S.B.8, as well as Ramirez v. Collier.
Now comes the million dollar question. Who gets to argue? The Court allocated one hour for argument time in NFIB v. Department of Labor and Ohio v. Department of Labor. The Court allocated another hour of argument time in Biden v. Missouri and Becerera v. Louisiana.
Who will argue? Steven Lehotsky represents NFIB and SG Ben Flowers represents Ohio. SG John Sauer represents Missouri and SG Elizabeth Murrill represents Louisiana. SG Prelogar will likely have back-to-back arguments. The Court may grant divided argument time to hear the perspectives of state and private parties. If not, there may be an important coin toss coming up.
The Supreme Court ruined a lot of holiday vacations. After the Sixth Circuit ruled, I was tempted to title my post, The Stranch That Stole Christmas. Now, the ire will lie with the Supreme Court.