Does the Supreme Court have a responsibility to save lives?

Question

Listening to the Oral Arguments in Biden v. Missouri (whether to stay the injunction against the CMS vaccine mandate), I heard a line of argument by some of the justices that seemed (to me, a layperson) to be outside the purview of the court. Specifically, they were arguing that allowing the injunction to remain in force may lead to more loss of life.

Justice Breyer (p. 81 of the transcript)

And the other side predicts serious harm, if the agency rule does not go into effect. And as you heard the OSHA case at the last minute, on the one hand, if they have to start complying with this, they have to get plans and the employers are hurt.

On the other hand, if they don't start to get those plans ready, people might -- well, it looks like a lot of people will get sick and take up hospital beds or worse.

So in weighing those equities, why don't we have to take and put quite a lot of weight on avoiding even by a minute or a second, because if you divide 750,000 by the number of seconds in a day, you get a lot of people. And why do we not have to take those things into account, see how the government would balance them, see if that is reasonable, and be very weary at the least of interfering with rules that will, in fact, save people's lives or hospital beds or from getting the disease?

I understand that there is a concept of "irreparable harm" when it comes to injunctions, but my understanding was that that is a premise of an injunction rather than the force behind the injunction itself. The force itself needs to be a legal argument. In this case, then, the question ultimately comes down to whether or not CMS has the legal authority to promulgate a vaccine mandate. It doesn't seem like the legality of that changes if people will otherwise die (except to the extent that prevention of loss of life is itself a legal determinant of its authority), so is it relevant for the court to consider as a standalone argument whether there will be additional loss of life.

In other words, if we were to stipulate that CMS does not have legal authority to promulgate vaccine mandates, would the court have any reason to consider the factor of loss of life?

Justice Kagan (p. 64 of the transcript)

Should it be that we decide, you know, as against what the Secretary has decided, in performing his important function of evaluating these potential disruptions and weighing those disruptions against the health benefits that he sees in that rule? Should we say we think that the -- that the disruptions are more, greater than the Secretary thought and we further would weigh them differently against the health benefits of the rural? Is that for courts to decide?

Here Justice Kagan seems to argue that it would be improper for the court to override the Secretary's assessment of what will lead to greater health benefits. But isn't that missing the point? The question for the court to determine is whether CMS exceeded it's authority or not, not whether the recommendations are sound medical advice.

Have I correctly understood the role of the Supreme Court, or does the court indeed have a duty to save lives (irrespective of the legal issues in the particular case), or have I simply misunderstood what the justices were arguing?

Answer 1

Your intuition that the concerns arise from the elements that must be established in connection with a preliminary injunction is correct.

Among the elements which must be shown when seeking a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 are that:

1. There is no swift and adequate remedy at law.
2. That the injunction will prevent irreparable harm.
3. That the public interest is served by the injunction.

A related issue is the "balance of the equities". In other words, what happens if the preliminary injunction is granted but then dissolved due to the merits not being established, as compared to what happens if the preliminary injunction is denied but the party seeking it ends up being correct on the merits.

The likelihood that loss of life will be prevented by ruling in a particular way on injunctive relief goes to all of those factors (there are a couple of other factors was well including preservation of the status quo and likelihood of success of the merits). So, if the court prevents loss of life for a reason that isn't ultimately supported by the law when the case is decided on the merits, but that means lots of people had to get vaccines that they otherwise would not have gotten, is that a terrible outcome?

See, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).

Inherent in this analysis is the understanding that "likelihood of probability of success on the merits" is uncertain at the preliminary injunction stage when not all evidence has been considered and not all legal arguments have been made in the case.

While the U.S. Supreme Court does not have preventing loss of life as one of its mandates, per se, a loss of life is generally considered to be something that is not in the public interest, something that causes irreparable harm, and something that cannot be fully remedied in swift manner with money damages (which is basically what an "adequate remedy at law" means).

Therefore, it is proper for SCOTUS to consider loss of life as part of the balancing test that applies when ruling on a preliminary injunction request.

Footnote

Here Justice Kagan seems to argue that it would be improper for the court to override the Secretary's assessment of what will lead to greater health benefits. But isn't that missing the point? The question for the court to determine is whether CMS exceeded it's authority or not, not whether the recommendations are sound medical advice.

Justice Kagan is impliedly reference the Chevron doctrine, which states that to the extent that an issue of statutory interpretation is addressed by a government agency's orders or regulations, that the courts should defer to the government agency's interpretation in all respects to the extent that this is simply completely irreconcilable with the statute.

Hence, if there is a rational reading of the statute which is consistent with the agency interpretation, even if it is not the most natural reading or the one that a court would give the statute in the absence of agency interpretation, the courts must defer to the agency interpretation. Often regulatory authority has a factual predicate (e.g. the agency can only regulate worker safety if there is a serious threat to the health of workers), and that factual predicate is deferred to as well.

In this case, this applies both with respect to the agency's interpretation that it has regulatory authority here, and with respect to the agency's determination of the facts relevant to issuance or denial of a request for a preliminary injunction.

Thus, if the statute is ambiguous in any way regarding the agency's authority to regulate, the court should hold that it has that authority, and should defer to the agency's fact finding regarding the public interest pending a determination on the merits when evaluating whether a preliminary injunction is appropriate.

Answer 2

So there's a lot of layers here.

In and of itself, it is not the responsibility of the Court to determine whether or not the medical advice was sound. It is their responsibility, however, to determine if CMS' actions were informed by sound medical advice and were reasonable.

There's two principles of law in play here:

1. Rational Nexus - The rational nexus test is the default setting when reviewing governmental action that is accused of being an abuse of their authority. Generally speaking, the Court is deferential to administrative action as long as that action can be shown to have a logical connection to their mission. Part of that determination involves evaluating the facts on the ground.

2. The Constituion is not a suicide pact. - While not found anywhere in the law, the concept endures as an understanding that just because the Constitution says "this is how you must do this thing." If doing that thing, in that way, causes egregious harm (including mass deaths) then we are not obliged to blindly march to our deaths at the Constitution's orders. It's a recognition that the Constitution is a living document, written before the circumstances it is expected to govern could possibly have been conceived of. In order to remain a viable document it has to be interpreted in light of that weakness, and so it must be read so as to permit society to take actions that preserve itself.