This op-ed was originally published in Washington Monthly.
When the conservative movement contrived to pack the U.S. Supreme Court with right-wing ideologues, one of the goals was to create a powerful ally in its campaign to dismantle the federal regulatory system, which we all depend on every day to safeguard our families, communities, and environment. With its recent decision in the emergency vaccine-or-test case, the Court’s conservative supermajority gave its clearest signal yet that it will advance this campaign from the bench.
The unsigned majority opinion and the concurrence authored by Justice Neil Gorsuch, when read together, lay out a comprehensive blueprint for defeating regulation in the public interest. Significantly, the arguments they raise are firmly grounded in the long-standing conservative myth that the regulatory system lacks sufficient “democratic accountability.” Quoting the late Justice Antonin Scalia, the concurrence casts the stakes in stark terms, warning of “government by bureaucracy supplanting government by the people.”
If the conservative justices’ frontal assault on our regulatory system were to succeed, the resulting harm would be incalculable. The vaccine-or-test standard alone would have prevented more than 6,500 deaths and 250,000 hospitalizations, according to the U.S. Department of Labor.