The Volokh Conspiracy

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Justice Gorsuch's Error in NFIB v. OSHA

The concurrence did not accurately quote a Labor Department brief from 2020.


Patterico pointed out an error in Justice Gorsuch's concurrence from NFIB v. OSHA. Here is the passage from the concurrence:

As the agency itself explained to a federal court less than two years ago, the statute does "not authorize OSHA to issue sweeping health standards" that affect workers' lives outside the workplace. Brief for Department of Labor, In re: AFL–CIO, No. 20–1158, pp. 3, 33 (CADC 2020). Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.

And here is the relevant passage from the brief:

 The OSH Act does not authorize OSHA to issue sweeping health standards to address entire classes of known and unknown infectious diseases on an emergency basis without notice and comment. Cf. AFL-CIO v. OSHA, 965 F.2d 962, 972 (11th Cir. 1992) (vacating standard that regulated hundreds of "diverse" airborne substances without "substantial evidence in the record" to support the regulation of each).

The 2020 brief was discussing an ETS for infectious diseases that are both "known and unknown." That brief did not concern the broader power of "OSHA 'to issue sweeping health standards' that affect workers' lives outside the workplace."

When I saw this error, my immediate thought was, "Where did Gorsuch get it from?" Based on my research, I could not spot a citation to the 2020 brief in any of the Supreme Court filings. But this citation does appear in the amicus brief filed in the Sixth Circuit by the Michigan House of Representatives and Michigan Senate. The brief, I think, accurately quotes from the Labor Department filings:

As laudable as these public-health goals are, Congress did not authorize OSHA to issue occupational standards, especially emergency temporary standards, designed to eradicate harms outside the workplace. In fact, the Labor Department disclaimed such authority last year in response to a labor union's attempt to force its hand on this very issue, arguing "[t]he OSH Act does not authorize OSHA to issue sweeping health standards to address entire classes of known and unknown infectious diseases on an emergency basis without notice and comment." Dep't of Labor's Response to Emergency Pet. for a Writ of Mandamus, In re Am. Fed'n of Labor & Cong. of Indus. Orgs., No. 20-1158 at 33-34 (D.C. Cir. May 29, 2020).

The Michigan brief includes the "known and unknown" caveat, that Gorsuch did not.

Ultimately, this error was harmless. With or without this citation, the concurrence stands on its own. Regrettably, one of the downsides of the rocket docket is that there is less time to check all sources.

Justice Scalia followed a process known as "booking." As Willie Jay described it, "rereading each original source before he would cite it in the opinion." Judge Joan Larsen offered this recollection:

The final step in producing an opinion, after the justice had turned his elegant and pointed pen on the humble drafts we law clerks submitted, was called "booking." We would wheel a library cart into his chambers (we used actual print volumes back then) and sit beside him on the big leather couch, feeling ourselves once again grow smaller as he read through every statute, case or article cited in support, front to back. Woe to the clerk who tried to cut a corner, or to cheat even a little; worse yet if he thought you had done it to try to reach a particular outcome that the law would not support. And no explaining why it wasn't your fault. "Strict liability for law clerks," we used to joke. But that was the right rule. "This is the Supreme Court, not a moot court competition," he would remind us. "We have a duty to get things right."

And Taylor A.R. Meehan shared this memory:

Likewise, no opinion circulated until Justice Scalia "booked" it for accuracy. "Booking" entailed a law clerk's bringing him a library cart full of every opinion, statute, or article cited in the draft for the Justice to read. Marking up the draft with a red pencil, the Justice would cross-examine the law clerk about whether a "see" signal was fair for a particular citation or whether there might be a better authority for a point made, for however long it took.

Booking would have avoided this error.

Update: Fittingly, I made an error here and referred to the Gorsuch opinion as a dissent. It was a concurrence. My mistake.