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?

  • 3
    Were it the Supreme Court's responsibility to "save lives", they would never allow capital punishment.
    – Rick Smith
    Jan 10, 2022 at 18:05
  • @RickSmith: That is a bit too populist in isolation. A reasonable argument could be that the death penalty ultimately saves lives by deterrence. However, that is an argument not backed up by facts.
    – MSalters
    Jan 11, 2022 at 10:42
  • @MSalters it is impossible to back that argument up with facts. The people who get the death penalty are dead and so can't commit further crimes. Any person who is deterred by the possible punishment doesn't commit the crime, so we can't know how many of those exist.
    – Burt
    Jan 16, 2022 at 22:04

2 Answers 2


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.


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.

  • But do the three points that you mention from Winter v. Natural Resources Defense Council apply in the absence of a legal argument? In other words, I don't think you can ask for an injunction simply because it there is no adequate remedy, there is irreparable harm, or it is in the public interest. Don't you have to challenge the act on legal grounds and then ask for an injunction on the premise that if you will end up being right legally then there will have been irreparable harm, etc.?
    – Alex
    Jan 10, 2022 at 23:03
  • A court considers all elements in connection with a request for a preliminary injunction (including likelihood of success on the merits) and balances them. There needs to be an argument expressed for why will you prevail on the merits, but that is always just one of five factors and may be more or less important on a case by case basis. This certainly isn't a case where success on the merits is a foregone conclusion for either party (and it almost never is in a preliminary injunction context). Likelihood of success is not "primary" over other factors, e.g., in this particular context.
    – ohwilleke
    Jan 10, 2022 at 23:09
  • Keep in mind, also, that the government passed the regulation, but is not the Plaintiff in the case which is seeking to invalidate the regulation, and that there is a presumption of validity and legality in favor of duly enacted regulations that has to be overcome.
    – ohwilleke
    Jan 10, 2022 at 23:12

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.

  • Thank you for providing these two principles. That said, is the question of (additional) loss of life truly relevant to #1? If the question is whether a particular agency exceeded the scope of its authority, surely it is conceivable for there to be a case where an agency (unambiguously) exceeds the scope of it's authority in order to save lives, such that the mere fact that lives would be saved should not be relevant to the understanding/interpretation of the statute.
    – Alex
    Jan 10, 2022 at 23:32
  • With regard to #2, the issue of loss of life would certainly be relevant, but has it ever been successfully argued? From what I can tell from the linked Wikipedia page, it seems that all the examples were either not challenged (formally in the courts), or were unsuccessful.
    – Alex
    Jan 10, 2022 at 23:33
  • Also, (and this may be sufficiently far afield as to warrant a separate question) stipulating that the concept exists, how are the parameters determined? For instance in this case there are other ways to address it without exceeding the scope of authority. I think both sides agreed that Congress could grant such authority, or that states could enact their own mandates. Can it be said to be a national suicide, if a majority of the legislature(s) don't even think it is necessary?
    – Alex
    Jan 10, 2022 at 23:33
  • @Alex Statutes are never so clear as we'd like, so yes: determining whether or not the agency's plan is reasonably well founded is part of the analysis of determining whether or not they're still on their permitted mission. As for #2, it's not a formal principle, but is embodied in things like the Chevron deference the other answer mentions, and so on. It's the reason statutory language isn't ever so cut and dry, really. Jan 11, 2022 at 14:12
  • 1
    @Alex When it comes to Federal agency power, the 'majority of legislatures' simply don't matter. The Constitution is quite clear that the Federal government is supreme and state legislatures are allowed to operate only where the Federal government hasn't already tread first. But the rational nexus test doesn't require that the agency is using the best available method, only that their method is plausibly going to advance their stated objectives. Jan 11, 2022 at 14:14

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