The Supreme Court’s conservative Justices unapologetically asserted their power this term. Over one week in June, they eliminated the constitutional right to abortion, expanded the right to carry a gun outside the home, and gutted federal authority to combat climate change. Americans reacted with fury and shock. They wondered how the Court’s conservatives could be so arrogant, so blind to the suffering caused by their jurisprudence, and so nonchalant in torching the Court’s legitimacy.
Other recent decisions offer clues. They reveal that the Court’s most conservative Justices are operating from slanted epistemic baselines. Ensconced in ideological and informational bubbles, they frame legal issues through the political hyperbole of the Far Right. This tendency fuels their hubris, insularity, and contempt. And it has enabled the Court’s extreme decisions—on abortion, guns, climate, and other subjects.
The Court’s rhetoric in recent vaccine mandate cases is illustrative. In January, the Court struck down a Biden Administration policy aimed at taming the coronavirus pandemic. The Court’s six conservatives ruled in National Federation of Independent Business v. OSHA that the Occupational Safety and Health Administration could not require large employers to implement a “vaccine-or-test” requirement for most workers. OSHA estimated the policy would have saved 6,500 lives and prevented 250,000 hospitalizations.
The ruling shares many similarities with the Court’s recent, divisive decisions. Here, as in the other cases, the Court’s Republican-appointed Justices remade the law to advance right-wing policy goals, seemingly unconcerned about practical consequences, over the dissent of the outnumbered Democratic appointees. Issued as a surging Omicron variant strained hospitals, this ruling immediately sowed confusion.
The same day, the Court also decided Biden v. Missouri, narrowly upholding a modest regulation requiring certain employees of facilities that receive federal funding to be vaccinated. Although the two cases involved similar legal issues of statutory authority, Chief Justice Roberts and Justice Kavanaugh joined the three liberals to uphold the limited requirement. The remaining conservatives dissented.
In his Missouri dissent, Justice Alito—known by fans and foes alike as the Court’s most conservative member—warned that the limited mandate “put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment.”
“Irreversible medical treatment” is a peculiar way to depict the COVID-19 vaccine, which is neither “irreversible” nor “treatment.” On irreversibility: the vaccine’s effectiveness against infection begins to wane after four months. When doctors speak of irreversible medical interventions, they refer to things like amputations, appendectomies, and oncological radiation—not vaccination. Unlike the smallpox vaccine, the COVID-19 vaccine does not leave so much as a scar, and its safety has been firmly established. It is also not “treatment.” Justice Alito confused a prophylactic for a therapeutic. The COVID-19 vaccine is preventative, reducing the likelihood of contracting COVID and the severity of symptoms in a breakthrough case. Indeed, under current rules, people positive with COVID-19 cannot receive the vaccine until they have recovered.
The fusion of “irreversible” and “treatment” is even stranger. Vaccinations are routine, and have long been required by schools. Existing regulations already require healthcare workers to get vaccinated against a slew of diseases, including influenza, hepatitis B, and measles, mumps, and rubella. All nine Supreme Court Justices have been triply vaccinated against COVID. Yet Justice Alito’s words make the ordinary seem ominous.
Justice Alito did not invent this strange expression. Defending the Republic, a “stop the steal” group founded and run by Sidney Powell, submitted an amicus brief in OSHA opposing Biden’s vaccine-or-test mandate, arguing that the COVID-19 vaccine is an “an experimental and irreversible medical treatment.” No other brief adopted this unusual descriptor. Powell, who put her name on the brief, is one of America’s most prominent conspiracy theorists. A former top lawyer for President Trump, she was fired for making outlandish claims about election fraud. She once alleged that a dead Venezuelan dictator and a cabal of international communists rigged the 2020 election, which Trump “won by a landslide.”
These lies have resonated with people close to the Court’s conservatives. After the 2020 election, Ginni Thomas, the wife of Justice Thomas, pressed White House Chief of Staff Mark Meadows to make Powell “the lead and the face” of efforts to stop “Biden and the Left [from achieving the] greatest Heist of our History.” According to Thomas, “Sidney Powell [and] improved coordination now will help the cavalry come and Fraud exposed and America saved.” Thomas has not publicly renounced her support for Powell.
Powell is a versatile and opportunistic conspiracy theorist. She’s also peddled wild falsehoods about the COVID-19 vaccine and the “authoritarian communist control imported straight from China” it represents. Defending the Republic alleges that “the [COVID-19] vaccine causes the virus to be more dangerous” and encourages people to take Vitamin C and “organic beet root powder” instead. The organization falsely claims the vaccine has caused thousands of deaths, miscarriages, and other horrors. And it has launched lawsuits to block vaccine mandates, aiming to “protect” people from this “irreversible medical treatment.”
Powell’s lawsuits to overturn the 2020 election were more dramaturgical than legal. Her main goal was not necessarily to win, but to promote herself and her conspiratorial (and lucrative) worldview. She’s adopting the same strategy to stop vaccine mandates, and it’s working. And now, a Justice on America’s highest Court elevated the reckless language she has championed—language designed to spawn doubt over the vaccine.
Justice Alito’s use of Powell’s phrase stoked conservative anger and publicized a simple refrain, which leading opponents of the COVID-19 vaccine quickly adopted. Consider Tom Fitton, a significant figure in the modern Right with deep ties to Trump’s orbit and a long history of trafficking misinformation to his 1.5 million Twitter followers. Fitton regularly makes claims like “the suppression of hydroxychloroquine is the worst public health scandal of the modern medical era” and “the Left” stole Donald Trump’s 2020 “victory by continuing to ‘count’ votes after Election Day deadlines contrary to law.”
Justice Alito’s culture war buzzwords struck a chord with Fitton. The day the vaccine decisions, Fitton tweeted:
EMERGENCY: Biden's abusive vaccine mandate compromising health care and should be immediately undone by Congress. Today's Supreme Court ruling puts "more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment."— Tom Fitton (@TomFitton) January 14, 2022
The following day, he again turned to “irreversible medical treatment” to denounce Washington, D.C.’s temporary proof of vaccination requirement for indoor venues:
This is now life in DC, whose tyrannical local gov't is further killing the city by abusively requiring citizens and visitors in our nation's capital obtain an "irreversible medical treatment" (to quote Alito) to sit and have a cup of coffee or eat in restaurant, go to a gym, etc pic.twitter.com/HBOi7dfu2t— Tom Fitton (@TomFitton) January 15, 2022
In the weeks that followed, “irreversible medical treatment” became a staple of Fitton’s anti-vax vocabulary. He deployed this expression to criticize the “tyrannical” New York Mayor and “the Deep State”; to praise Shaquille O’Neal’s opposition to vaccine mandates; and even to re-up discussion of a 2012 Supreme Court decision that upheld the Affordable Care Act. While not always mentioned explicitly, Justice Alito palpably influenced Fitton.
The provenance and weaponization of “irreversible medical treatment” is troubling. It’s even more alarming when framed against other examples of conservative Justices subtly echoing anti-vaxxers and other extremists. Justice Thomas’ Missouri v. Biden dissent posited the limited vaccine mandate “force[d] healthcare workers . . . to undergo a medical procedure they do not want and cannot undo.” Query whether two or three shots spaced over months is reasonably characterized as “undergo[ing] a medical procedure.” Equally significant was what Thomas left unsaid. The vaccine does not create harm that needs to be “undo[ne].” The government has compelling reasons to “want” healthcare workers to be vaccinated against a highly communicable and dangerous disease, especially since their job involves treating elderly, disabled, and immunocompromised patients most at risk for severe illness or death from COVID-19. Far from being “force[d]” to do anything, anti-vax healthcare workers could get new jobs that didn’t involve high-risk patients.
Concurring in OSHA, Justice Gorsuch wrote that the government sought to “induce individuals to undertake a medical procedure that affects their lives outside the workplace.” One wonders how this “medical procedure”—again, a few shots— “affects their lives” beyond protecting them from severe illness and death. And at the OSHA oral argument, Justice Alito told the Solicitor General that he was “not saying the vaccines are unsafe,” but asked her anyway whether it was true that some people will “suffer adverse consequences” because “there is some risk.” Anti-vaxxers cheered his comments.
The Court’s anti-vaccine flirtations have spread to other domains. During oral argument in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade, Justice Barrett described forced pregnancy as “an infringement on bodily autonomy . . . which we have in other contexts, like vaccines.” Her comparison was puzzling. Unlike the safe COVID-19 vaccine, coerced pregnancy creates serious risks and burdens, especially to poor women, and does not slow the spread of a dangerous disease. Yet Justice Barrett’s comparison would be familiar to those in the right’s foxhole. It echoed anti-vaxxers’ appropriation of pro-choice rhetoric as a rallying cry against vaccination.
Searching for historical analogues for the current Court, scholars have pointed to Lochner v. New York, which invalidated a New York law that capped bakers’ working hours. Lochner has become a metonym for an infamous era—from 1897 to 1937— in which an uninhibited, conservative Court invalidated a range of democratically enacted laws that regulated businesses, motivated by an “economic theory which a large part of the country does not entertain” (to quote Justice Holmes). Recent decisions like OSHA and Dobbs are brazen and dogmatic, and fit this historical comparison.
But Lochnerism only explains one dimension of the current Court. An equally illuminating reference point comes from Richard Hofstadter’s 1964 essay, The Paranoid Style in American Politics. Hofstadter documented the “sense of heated exaggeration, suspiciousness, and conspiratorial fantasy” in American public discourse, propagated by people who feel “America has been largely taken away from them and their kind” but remain “determined to try to repossess it and to prevent the final destructive act of subversion.”
As they move to repossess American law, the Court’s most conservative Justices have taken part in this paranoid style. They’ve amplified extremists, echoing heated exaggeration and framing legal issues through the blinkered worldview of the fringe. And they’re just getting started.
On the last day of its term, while much of the nation mourned the Court’s torrent of hard-right decisions, Justice Thomas continued to attack vaccine mandates. Joined by Justices Alito and Gorsuch, he dissented from a denial of certiorari, writing that “all available COVID–19 vaccines were developed using cell lines derived from aborted children.” This rhetoric was reckless, inflammatory, and misleading; doctors, journalists, scientists, fact-checkers, and law professors sharply condemned it. But the Far Right celebrated. Tom Fitton quoted and praised Justice Thomas’s language on Twitter. The fringe, once relegated to basement meet-ups of the John Birch Society, has eager interlocutors in the rarefied halls of America’s highest court.