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February 01, 2022
America Dissected
The Court of Public Vaccination with Prof. Melissa Murray

In This Episode

Your right to swing your first ends where my face starts. That principle captures the limits of our freedoms in this country. And the Supreme Court has long held the precedent that people could be required to be vaccinated to protect the public from disease. But a recent ruling against workplace vaccine mandates may upend that. We speak with Prof. Melissa Murray, NYU Law professor and host of “Strict Scrutiny,” a podcast about the supreme court, about that, the retirement of Justice Breyer, and more.

 

 

Transcript

 

Dr. Abdul El-Sayed: The number of COVID-19 deaths during the Omicron surge has now surpassed the total number of deaths during the Delta surge. Moderna and Pfizer both announced trials for Omicron-specific vaccines. A new study finds that child tax credits increased brain activity in infants of low-income mothers. This is America Dissected. I’m your host, Dr. Abdul El-Sayed. The last two years of COVID-19 have been a lot of things: they’ve been taxing, they’ve been tragic. But one thing that I think a lot of us have taken out of it, or at least something I have, is so much appreciation for what it means to live among people I might never know or even speak to, especially now that this pandemic has detached so many of us from the things that we used to take for granted. Think about walking around your city or your town. Think about all the collective experiences, your time at school, going to a sporting event or a concert. What makes those experiences so incredible? It’s the other people there, of course. Sociologists call this experience collective effervescence, the idea that experiencing a thought or action together fundamentally changes the experience of that thing. I’m going to get a little personal here for a second. This last surge, Omicron, it’s been the one that’s really tested me most. We have a four-year old who, of course, is unvaccinated. She goes to preschool. And watching the spike in hospitalizations among kids her age, it’s worried me. Feeding the instinct to figure out just how to keep her home, at the same time I know that she needs school. She needs her friends, her community. It’s the little slice of normal that she’s got right now. And with limited childcare options, Sarah and I know that there’s no way we can make it work for her at home. So every day, as I drop her off, I remind her to keep her mask on, how this coronavirus is sneaky and we don’t want it to sneak into her when she takes it off. And because we’re so worried about her, Sarah and I, both triple vaxxed have been extremely cautious about not inadvertently bring it at home. We’ve really pulled back on a lot of the activities we might have been okay with at other points in the pandemic. Time has lost all meaning. Days have compressed into an undifferentiated plasma, the same day every day. I know that experience is shared by so many of you. And honestly, we’re some of the lucky ones. When I step back and ask what I’m missing, it’s other people, it’s the ability to make small talk with the barista at the coffee shop or see a family sharing a stroll downtown or the joy of going somewhere to see people I love and miss. It’s the ability to make plans on the spur of the moment. There’s a quote I keep coming back to as I reflect on all the moments we’ve lost these last few years. Margaret Thatcher, the UK’s version of Ronald Reagan, once said “Who is society? There’s no such thing. There are individual men and women, and there are families.” Individual men and women. That was how Thatcher justified her gutting of the UK’s robust public welfare system. Think of that—dismissing those special interactions, those communities, saying they don’t matter at all, that if they were just gone—as they have been now for nearly two years—we wouldn’t miss them. Well, Margaret Thatcher never lived through a pandemic. Incidentally, her distant successor, Conservative Prime Minister Boris Johnson, doesn’t agree with her either:

 

[news clip] Prime Minister Boris Johnson and other politicians are accused of violating COVID lockdown restrictions. And this comes amid new allegations of another event, held to celebrate Johnson’s birthday at the height of the pandemic.

 

Dr. Abdul El-Sayed: That’s right. BoJo just can’t stop partying. It turns out we need each other. But that should also come with responsibilities to each other too. A common refrain when we think about the place where freedoms and responsibilities collide is that your freedom to swing your fist ends where my face starts. Opponents of mask and vaccine mandates keep telling us that if it’s a matter of freedom of choice, which they conveniently forget when it comes to reproductive rights—but I digress—they shouldn’t have to wear a mask or get a vaccine if they don’t want to. But there’s an obvious problem there. Their choices, like swinging a fist, have implications for the rest of us. If you’re not wearing a mask, well, that increases the probability that you’ll breathe COVID-infected air out, and the rest of us might breathe it in. If you’re unvaccinated, you’re more likely to do the same thing. Last year, the Biden administration recognized that the workplace was a particularly dangerous place for millions of Americans who don’t have the luxury of working from home. An employer can legally require you and your coworkers to be in a particular place at a particular time, together. If your coworker’s not vaccinated, they’re more likely to spread COVID into the air you’re required to breathe. That’s why OSHA mandated that all employers with more than 100 employees require their employees to be vaccinated. But a few weeks ago, the Supreme Court heard arguments on that requirement. And here’s what they ruled:

 

[clip] The Supreme Court of the United States blocked President Biden’s vaccine mandate for large private businesses.

 

Dr. Abdul El-Sayed: You already know that I think it’s an absurd, counter-scientific decision that’s contrary to the best interests of millions of workers in this country and undercuts the responsibility all of us have to the society in which we live. Well, if you didn’t, now you do. But I wanted to talk to someone who’s got a lot more knowledge on the law, the court, and the rulings than me. We’ll speak with Professor Melissa Murray, NYU law professor, and host of the newest Crooked Media podcast, focused on the Supreme Court, Strict Scrutiny, after the break.

 

[ad break]

 

Dr. Abdul El-Sayed: All right, ready to roll. Can you introduce yourself in tape?

 

Melissa Murray: Sure. I’m Melissa Murray. I am the Frederick I. And Grace Stokes Professor of Law at New York University School of Law, and I am also a co-host of Strict Scrutiny, a podcast about the Supreme Court that is now in the Crooked family.

 

Dr. Abdul El-Sayed, narrating: Look, Melissa and her co-host at Strict Scrutiny are my go-to when I need to understand the Supreme Court’s logic. I’ve wanted to have her on the pod for some time now and well, considering the Supreme Court’s recent ruling and the retirement of Justice Breyer, I knew this was the time.

 

Dr. Abdul El-Sayed: I know! Crooked Media latest and newest pod. I’m super excited. I feel like, I always sort of felt as sort of a content specialist in health, I always felt kind of alone here, but I feel I feel good now. We have like, we have like a health podcast, we have a legal podcast—I mean, we might as well start a university. It’d be great.

 

Melissa Murray: We got everything, got everything.

 

Dr. Abdul El-Sayed: We could be just like Trump and start our own school. It’s be great.

 

Melissa Murray: Crooked University.

 

Dr. Abdul El-Sayed: [laughs] It’s right there in the name. Anyway. So you host a podcast all about the Supreme Court. You’ve also watched the consequences of President Trump’s three ultra conservative judicial appointments and Justice Roberts’ effort to keep the court from becoming too political. How should we be thinking about the court right now? What’s changed, what’s stayed the same?

 

Melissa Murray: So I think it’s fair to say that the court has really lurched to the right and it will have really significant consequences, I think, for most Americans. For much of the last 20 years, the court has been sort of narrowly perched on this five to four conservative majority. And what that meant was there is a little more room for consensus-building among the justices, because all you needed to form a majority to prevail was to just persuade one person. And you know, for the conservatives that could be to persuade a liberal if you had a wobbly conservative. But most of the time for the liberals, it meant really courting one of the conservatives in the middle. And that typically was someone like, you know, Justice Kennedy, who is more moderate in his conservatism, perhaps the Chief Justice who, though a very dyed-in-the-wool conservative, is more institutionally minded, I think likely because of his role as the Chief Justice of the United States. Now that they have a six to three conservative super majority, I think the conservative bloc and really the hard-core set of conservatives don’t really have to compromise on anything, right? They have three that are definitely in the bag and two that are pretty much there as well. And so they don’t need the Chief Justice. Like the Chief Justice, I think, was always a kind of moderating influence, even though he is not a moderate, but he was a moderating influence. And I don’t know that he wields that kind of influence over his conservative colleagues anymore because he is basically irrelevant in terms of his vote. His vote isn’t necessary to make a majority and I think the only way he could exercise control over the conservative bloc is to join them and then use his prerogative as chief justice to assign the writing of the opinion.

 

Dr. Abdul El-Sayed: I was going to say that the only way to, you know, the only way to really balance something is if it’s kind of balanced on its own. It’s really hard to think about trying to balance anything that is so fundamentally imbalanced now. And so, you know, this notion that you have this chief justice who has a lot of interest in trying to protect the court from seeming hyper-politicized, the notion that they actually even have any power is sort of out of a bygone era at this point.

 

Melissa Murray: I think that’s exactly right. I don’t know that we’ve ever seen a court quite so lopsided. I mean, people talk about the Warren Court being ultra-liberal. I think that is grossly overstated. And I think there were a number of people even on that Warren Court bench that, you know, you could pick off different coalitions on different issues. Like, this is a conservative court that moves in lockstep on the key conservative issues—abortion, guns, the administrative state, government power, executive power—like they move and work as one.

 

Dr. Abdul El-Sayed: Yeah, I want to zoom in being as this is a public health podcast, the Supreme Court’s most recent decision on the workplace vaccine mandates. You know, just for folks who haven’t been paying close attention, the Biden administration had put forward through OSHA a vaccine or test requirement for employers to enforce if they had more than 100 employees. And rather curiously, the Supreme Court struck that down, but then kept a vaccine mandate for health care employees in clinics and hospitals that bill to Centers for Medicare and Medicaid. So if they bill Medicare or Medicaid, this still applies. Can you walk us through the case? What were the case particulars in this particular case? And then we could talk a bit more about the ruling.

 

Melissa Murray: Sure. First, let me say that as to the OSHA mandate, it wasn’t just a vaccine mandate. It actually offered employers who had more than 100 employees the option of either requiring the vaccination of their workforce or alternatively implementing a testing regime for those workers who were not vaccinated. So this idea that it was mandatory vaccine mandate, I think, again is overstated and misses some of the nuance. Employers were given a choice. But essentially, that regulation was promulgated by the Occupational Safety and Health Administration (OSHA) and that is the administrative agency that’s charged with basically regulating health conditions in American workplaces. And I’ll just say, for the record, growing up, my father was a dentist, so I heard about OSHA all the time. My father was a dentist. It was the 1980s, 1990s. HIV was enormous and OSHA was all over regulating blood-borne pathogens in service of trying to curb the HIV epidemic and to make the provision of dental services safe. And so, you know, I just remember hanging out at my dad’s office and there was all of these OSHA compliance documents that you know, his office and his practice had to adhere to. And so to me, it seems like, you know, that’s kind of the price of doing business in a modern workplace, like you’re subject to these administrative regulations. And one of the things that OSHA is supposed to be able to do under the act that it is charged with administering is promulgating regulations that would ensure the safety of workers where there are significant health issues or dangers or threats to health in the workplace. So that could be something like a blood-borne pathogen associated with HIV, but the Biden administration said, well, that seems to speak to the whole question of a potentially deadly virus that is easily transmissible and is transmitted through shared air and so that’s why we are asking large employers or employers with more than a hundred employees to institute either a requirement that their workers remain masked or alternatively, that they test frequently, to ensure that no one is transmitting the virus. Like the virus itself is the workplace danger. And there are workers who don’t have the luxury of being able to stay home and isolate during the pandemic, and, you know, some people cannot work from home, and those people perhaps are most at risk from those who are contagious, are unvaccinated, and may be transmitting this. And the mandate was put in place to ensure that there was a way to sort of limit the transmission of the virus in the workplace. And the administration said this is exactly what OSHA was supposed to do under this particular statute.

 

Dr. Abdul El-Sayed: And that makes perfect sense to me as an epidemiologist and, you know, and someone who ran a health department. Because here’s the thing: if your employer can mandate that you be in a particular place with other employees and those people have the potential to make you sick in a pandemic that’s taken down nearly 900,000 lives, then it follows that OSHA has an interest in making sure that they minimize the spread of disease in that workplace. That is a workplace safety question. And I guess I wonder, you know, given the sort of obvious nature of that to anyone who’s ever worked a job, how did the Supreme Court justify striking that down?

 

Melissa Murray: So I will note that those challenging the laws included, among others, the National Federation of Independent Businesses—that’s a small business interest group that has been very active in challenging government regulation of employer businesses, including small businesses, on the ground that government regulation is too expensive for small businesses to sustain. So they were among the challengers in the first ACA case, NFIB versus Sebelius that challenged, quote unquote “Obamacare” back in the 2000s. I guess, was 2013. They also brought this challenge, and they were joined by a number of states who also lodged this challenge to OSHA as well. And the logic of the court’s decision is really quite interesting. They agree that OSHA has an obligation to administer this statute and to regulate the prospect of dangers in the workplace, but because the coronavirus is not confined to the workplace, it is not, in the majority’s view, a workplace hazard that can thus be within OSHA’s purview. So because the coronavirus is not just in workplaces, but is in schools, and it’s on the subway, and is in the supermarket or anywhere—not just workplaces—it’s outside of the scope of OSHA’s authority.

 

Dr. Abdul El-Sayed: So. I mean, first of all, you’re smarter than I am and you are legally trained, I’m not, but it strikes me that, you know, let’s go back to the Triangle Shirtwaist factory fire.

 

Melissa Murray: Which occurred like out the window. I literally am like five blocks from that.

 

Dr. Abdul El-Sayed: So it’s a very relevant people example here.

 

Melissa Murray: Yes!

 

Dr. Abdul El-Sayed: So fires happen outside the workplace, and there’s a lot of things that OSHA does to make sure that fires don’t happen in the workplace. I guess I have two questions about this. A, how doesn’t that completely decimate that reasoning, which is to say that there are specific aspects of a workplace that make them more likely to render illness or injury to someone as a function of the nature of the workplace, that also happen outside the workplace? And then the second question is, well, then does that not undo the precedent that OSHA uses to to protect people from all kinds of things in workplaces like falling or poison, that all can happen outside of that workplace?

 

Melissa Murray: So I should be clear that there were a number of arguments that these challengers lodged against the vaccine and test mandate, among them that it was outside of the scope of OSHA statutory authority. The other arguments were that OSHA had not fulfilled the necessary protocols to promulgate this particular regulation on an emergency basis. So set that aside it. It’s not sort of the meaty one. I think this idea about the fire and the prospect that, you know, lots of different workplace dangers are not necessarily confined to the workplace, they may appear in other places, but that does not obviate OSHA’s authority to regulate them. Lots of justices raised this at oral argument, among them Justice Sonia Sotomayor, who interestingly was attending oral argument by telephone because she did not feel—she’s later said this—she did not feel that it was safe for her to be in the courtroom because one of her colleagues, Neil Gorsuch, who actually sits right next to her on the bench, was not wearing a mask and was not masked. A couple of other justices took off their masks as oral argument continued, Justices Alito and Thomas, I think, did, and the Chief Justice removed as when asking questions. But Justice Gorsuch sort of defiantly unmasked for the entire thing, and Justice Sotomayor raised this question about the fire on the telephone. She literally could not go to work because one of her colleagues refused to wear a mask. You know, there’s so much in that image of someone trying to do their job but being prevented from doing so because they have a chronic health condition and they have a colleague who could accommodate them by doing something that is admittedly uncomfortable but not necessarily unimaginable or completely intolerable, and he would not do it. But I think that’s the kind of energy you saw from this conservative wing of the court. Yes, fires can happen outside of workplaces. Yes, coronavirus can happen outside of workplaces, but the fact that the coronavirus is everywhere and not just in the workplace means it’s outside of the scope of a statute meant to deal with occupational safety hazards.

 

Dr. Abdul El-Sayed: I remain stumped by the logic.

 

Dr. Abdul El-Sayed, narrating: We’ll be back with more of my conversation with Professor Melissa Murray after this break.

 

[ad break]

 

Dr. Abdul El-Sayed: I want to ask you, what do you make of this particular situation where Justice Gorsuch decides that he’s not willing to wear a mask and this then precludes Justice Sotomayor’s participation in person? What does it say about some of the ways that the broader cultural war may be fighting themselves, enlarging themselves into the chambers of the justices?

 

Melissa Murray: It’s a really terrific question. You know, there was a lot of back and forth and reporting about whether or not he had been asked to wear a mask and refused to wear a mask, and then he and Justice Sotomayor issued a statement that really didn’t answer the question about whether he had been asked to wear a mask by the Chief Justice, but rather, you know, sort of said, made noises about them being warm colleagues and friends. Which I think is likely to sort of assuage the public that this is a court that, despite the ideological fissures, is very much a court of colleagues, like it works. They work together, even though they don’t necessarily agree. And indeed, they said that in their statement. But I don’t think that that statement could paper over what seemed obvious to those of us on the outside. And that is, we all know that the question of vaccines and the question of masking has become deeply, deeply politicized and indeed vilified on the right. And I don’t think you could have looked at the scenario and not come to the conclusion that that sort of politicization had creeped into the court itself. I mean, to go on to the bench as the only unmasked person seems like a statement. And you know, to be—it is a statement. And to be fair, Justice Gorsuch is sort of very clear about his libertarian views, and I think being unmasked is probably consistent with one’s vision of libertarianism, but it is, I think, deeply, deeply ironic, perhaps even hypocritical to be in a workplace where the public isn’t actually permitted, despite the fact that it is a public building and a public institution, but the public is not permitted to go into it right now in the same numbers that it was before and if they do go, they are required to be masked. I think they’re required to show proof of vaccination to attend oral arguments, and at the same time, you are sitting here hearing a case about whether or not employers can make similar provisions for their own employees. You enjoy those protections already in your workplace and you’re unwilling to extend them, and you’re unwilling to extend just a basic courtesy to your colleague who has a chronic illness. I mean, it just sort of smacks of—

 

Dr. Abdul El-Sayed: It’s a bit precious.

 

Melissa Murray: Just the worst, it’s the worst kind of cynicism, I think. It’s hypocritical. It’s, I mean, if this is your libertarianism, I guess. I mean, is this Ayn Rand? I mean, it’s the worst kind of Ayn Rand libertarian.

 

Dr. Abdul El-Sayed: Well, it’s the kind of libertarianism that that that happens in a vacuum, and, you know, that is divorced from the real lived experience of people who actually have to go to work, don’t get to wear robes, and don’t go to work in a public building that is already locked down, in effect, for you. Yeah, I want to ask, just turning back to the cases themselves. It was interesting to me that the Supreme Court upheld the mandate for health care workers, because again, I’m no lawyer, but it seemed to me actually that the employer mandate was made on actually more furtive ground than the health care mandate. What do you make of that and how do you explain the difference in how the court ruled on either case?

 

Melissa Murray: I think the Medicare-Medicaid mandate for health care workers was actually a little more straightforward and could not be—and I don’t think the conservative bloc necessarily get around it. Generally, when the federal government disperses funds to hospitals or to the states, like federal block grants or whatnot as the Medicaid-Medicare program is, they can condition how that money is used. Right? So they can impose conditions on the state as a condition of receiving these federal funds. And so on that logic, when the Medicare-Medicaid grants are made to these hospitals, they can be subject to a range of various federal government conditions, including the condition that all of your health care workers be vaccinated if you are going to continue to be in receipt of those funds. So that was, I think, a more straightforward question for the court. I think it would have been a lot harder to come out differently on that. The OSHA, I think, you know, arguably you could make some, you could make a broader statement or there could at least be some dispute about what is the scope of the OSHA statute and whether the coronavirus could fall into it. And obviously, six of the justices said that it did not. I think it was a lot harder to make that same case on the Medicare-Medicaid health care worker provision, although there were some members of the court who would have struck that down, too, so again, hard-core conservatives. I thought it was a very easy question.

 

Dr. Abdul El-Sayed: Yeah, that’s helpful to understand and I appreciate that that hinged on a very different, on a very different set of standards. I want to go back to a point that you made about the nature of the plaintiff. And it’s interesting that this is a coalition of small businesses that has a history of going after government on any of these sort of regulations. I wonder what it now means more broadly beyond even the issue of these vaccine mandates, what it means for the broader capacity of government to regulate what happens in businesses as they relate to the public.

 

Melissa Murray: It’s a terrific question. And I think, you know, one of the things we have seen over the course of the last 20 years is a deeper and perhaps more cynical conservative antipathy to just the prospect of regulation. What strikes me as really interesting is that it is always, the hostility, the skepticism to regulation is always packaged as an affront to mom and pop businesses, as opposed to something that might actually accrue to the benefit of the working people who may be the employees at such businesses. But it’s like the two narratives I think don’t necessarily sync up. You know, it’s not surprising that the National Federation of Independent Businesses, which sees itself as a champion of small businesses, or the Chamber of Commerce for that matter, is always on one side of these cases, always sort of writing briefs in support of those who had undo and would challenge government regulation. You know, they’re focused on the small business owners. And, you know, I think there’s a really interesting set of concerns there, and I understand how regulation can make it harder to make margins, to run a business profitably, but I’m also sensitive to the fact that even small businesses employ people who are not business owners, who are just working people trying to feed their families and need health insurance and are worried about just like their labor being exploited in a lot of ways. And so there are a lot of tensions there, and it’s not a right or left problem. We have a society in which we have essentially privatized the most basic needs of our citizens. We assume that children will be cared for entirely by their parents, and parents will work to provide for what their dependents need, whether that’s food or shelter or health insurance, and if you don’t have health insurance, it’s because you don’t work, or you don’t work in the way or have the work benefits that would provide you with that. But what’s absent from that is like, is there any role for the state to play? And the Chamber of Commerce is like, Yes, the state is regulating, and that’s bad. But imagine how it would look different if we imagine the state not just being in the posture of regulating business, but actually subsidizing workers in particular ways. And so there’s something off about the political economy of this. So I definitely understand where the small business owners are coming from and they see the state as corrosive to their interest, but imagine the state in a posture where it was perhaps ameliorating the circumstances for everyone, small business owners and employees alike.

 

Dr. Abdul El-Sayed: Yeah, there is an implicit cognitive dissonance in this because I think so much of the neoliberal agenda works through business as the necessary arbiter of civic life. Think about health insurance. The ACA cements health insurance and the health insurance industry in place, and then a lot of these businesses, when they—or business organizations—when the ideology that they have driven for—which is that public goods get sieved through them—then wins in either the court of public opinion or in the law, they then push back and say, Well, we don’t want the government to regulate, or the government regulations that come with being asked and maybe more importantly, the profits of public goods sieving through what we do. And you know, it’s fascinating to me that you had in the health insurance example, you had the ACA, in effect, cement in place a health insurance market and then health insurers continue to operate within what are pretty large bounds for health insurers to operate within, and any attempt for the government then to flex its muscles, to force them to actually meet the responsibility of the public good that was supposed to be met through them, they’ll push back on that and argue that this is government interference with private business.

 

Melissa Murray: Yeah, that’s interesting. There’s so much in what you said. I mean, like, you know, the first part, I mean, I think that’s really salient is that the corporation or corporate interests, whether it’s small businesses or large corporations, being the conduit through which we provide these sort of basic public goods—I think marriage actually works in the same way on a different level, like marriage is a way that we sort of prop up our tattered social safety net so we don’t actually have to have a social welfare state. We just assume the family will provide that. And the family, and I think these business interests have to work together, like the family has to be employed. There has to be a breadwinner or someone that goes out in the market and does this. I mean, so it all is inextricably intertwined with each other, and the entity that sort of off the hook for anything but the regulation is, of course, the state. So, you know, imagine being in a different model. I mean, the advanced democracies in Europe, I mean, yes, they have much higher levels of taxation, but they also have far fewer fragile families and far less public need.

 

Dr. Abdul El-Sayed: Right. And I’ll also argue that the efficiency of their taxation in terms of providing people in those societies with tangible goods and benefits is actually substantially higher, right?

 

Melissa Murray: Yeah.

 

Dr. Abdul El-Sayed: You can’t, you know—

 

Melissa Murray: And it’s not like they don’t have businesses that thrive and do well. I mean, like IKEA is in Sweden, which is one of the most generous governments in terms of subsidy to, certainly families. It hasn’t necessarily thwarted private enterprise.

 

Dr. Abdul El-Sayed: I really, really appreciate you taking the time. I want to ask one last question here. There’s been a lot of controversy increasingly about the activism of Ginni Thomas, who is Justice Clarence Thomas’ wife, particularly around the Stop the Steal movement and questions of, frankly, fundamental importance to the viability of our democracy. And I think Justice Thomas has been characteristically mum on all of this. I want to ask—this to sort of on the front of the Gorsuch question and the culture war—this is somewhat unprecedented, and I want to ask what your perspective is on is there a way to force Justice Thomas to recuse himself on these issues should they come to the court? Is there going to be potential pressure from inside the court to rectify this? Or are we stuck with a Supreme Court justice whose wife thinks that the last, the last fair and just election was stolen?

 

Melissa Murray: So short answer: no. I don’t think that there is any sort of official way to acquire Justice Thomas to recuse himself from litigation or cases in which some of the organizations with which his wife’s consulting firm does work, actually appear. And I think some of the reporting has shown quite close relationships between her consultancy and some of these litigants that frequently appear before the court. But no, the Court, unlike other federal courts, are not bound by a particular rules of ethics, aren’t really required to recuse themselves. And when they do recuse themselves, it’s of their, they’ve done so prudentially. They’ve decided that the appearance of impropriety is too great and that they are self-selected out. There was time when Justice Thomas actually recused himself from a very big case. This was the Virginia Military Institute case back in 1996, and he recused himself because his son, Jamal, was a cadet at VMI at the time. And you know, that seemed right. And justices have sort of taken themselves out of various cases. Justice Kagan took herself out of the consideration of the UT versus Fisher affirmative action case because it was something that she had overseen for the government when she was solicitor general. So those sorts of things happen, but they really are the justices own behest, not because of any mandate. But that doesn’t mean, I think, that there isn’t either external or internal pressure that can be brought to bear on a justice. So, you know, Justice Scalia famously recused himself from a case when he had earlier indicated that he might not after there was, I think, quite public outcry about what seemed to look like an inappropriate relationship between the Justice and some of the litigants. So I think the court has to be really careful to preserve its legitimacy. So this might be a situation where Justice Thomas, because of the optics, like whether it’s true or not, the optics are terrible, and this just might be a situation where he would want to recuse himself. Or alternatively, maybe his colleagues would press him to recuse himself because of the danger and the corrosion that this might do to the court. Maybe the public. The public talking about it, the public discussing this, would force some members of the court to perhaps raise this with their colleague, but there is nothing formal to require him to do so.

 

Dr. Abdul El-Sayed: And it reminds us that, you know, our government is for the people by the people, and we have a responsibility to step up and speak when we believe that potential injustices could be done. Really appreciate you coming and joining us on the pod. That was again Professor Melissa Murray. She is a professor at NYU Law and also co-host of the newest Crooked Media podcast, Strict Scrutiny. I really appreciate you joining us today and clarifying some of this. Thank you again.

 

Melissa Murray: Thanks Abdul.

 

Dr. Abdul El-Sayed: As usual, here’s what I’m watching right now. An average of 2,300 people a day died of COVID-19 every day last week, and there have been more deaths during the Omicron surge than Delta surge. That may sound counterintuitive. You’re probably thinking how Omicron cases are going down. If so, why are deaths so high? And I thought Omicron was less severe than Delta. How come it’s taken more lives? Let me explain. Yes, it’s true that cases are going down. But remember, deaths tend to trail cases by two to three weeks, and COVID peaked about a week ago. Deaths are going to be at their highest over the next week or two. And they’re so high, despite Omicron being less severe than Delta because of the paradox we talked about before. Even though an Omicron case may be less severe than a Delta case, there have been so many more cases of Omicron that the spread of it has more than made up for the lower severity. So while Omicron may be less severe for you or I, it’s more severe for us. Turns out there is a such thing called society, Margaret Thatcher. Both Pfizer and Moderna announced they are in trials for new Omicron-specific vaccines. It’s a little late for that, don’t you think? Don’t get me wrong, I don’t really understand why they’re trying their variant-specific vaccines right now, but it could be beneficial for a couple of situations in the future. First, even after the Omicron wave subsides, Omicron will likely continue to bump around the population for some time. That said, the level of cases may not substantiate an Omicron-specific vaccine, but here’s where this vaccine could be really helpful: this virus isn’t done evolving, and the next variant of concern will likely be a descendant of Omicron. What makes Omicron so transmissible are three clusters of mutations on its spike protein, which a future variant could also share with it. So having a vaccine that targets them could be really valuable, even if by that point, it’s no longer targeting Omicron per se. In hopeful news, a new study finds that child tax credit increased brain activity in infants of low-income mothers. The effects were mild, but they were real. So how could a monthly check shape something as physiological as an infant’s brain activity? Well, we know that a mother’s stress has a major impact on uterine environment, specifically mediated by the stress hormone cortisol. When you know you’ll have enough money to keep the roof over your head and put food on your table, it reduces that stress, and it changes the environment in which an infant brain develops. Here’s the sad part, though, rather than renew the child tax credit, Senator Joe Manchin said he couldn’t explain it to the good people of West Virginia—by the way the country’s poorest state—and he let it lapse. Well, Joe, hope this makes it harder to explain why you can’t support it.

 

That’s it for today. On your way out, I want to ask you to do me a favor: can you please rate and review our show? Look, I know you’re probably just listening me this, here this. I’m going to say it again. Please rate and review the show. It really does help. Also, if you love the show and want to rep us, I hope you’ll drop by the Crooked Media for some America dissected drip. We’ve got our logo mugs and t shirts, our Science Always Wins t-shirts, sweatshirts, and dad caps, and our Safe and Effective tees. America Dissected is a product of Crooked Media. Our producer is Austin Fisher. Our associate producer is Olivia Martinez. Veronica Simonetti mixes and masters the show. Production support from Tara Terpstra, Lyra Smith, and Ari Schwartz. The theme song is by Taka Yasuzawa and Alex Sugiura. Our executive producers are Sarah Geismer, Sandy Girard, Michael Martinez, and me, Dr. Abdul El-Sayed, your host. Thanks for listening.