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Elena Kagan gets sarcastic as anti-vaccine mandate lawyer drives her to her wits’ end

Justice Elena Kagan
Justice Elena KaganPhoto: Supreme Court photo

Supreme Court Justice Elena Kagan just couldn’t take an anti-vaccine mandate attorney’s arguments seriously and sarcastically mocked him for saying that the Biden administration should have looked for a better solution to COVID than a vaccines and testing.

The Supreme Court heard arguments today in several lawsuits brought against the Biden administration’s vaccine-or-testing mandates as new COVID cases skyrocket in the U.S. The mandates will require 84 million workers to get vaccinated or tested regularly to help bring the pandemic under control.

Related: Elena Kagan schools Texas lawyer on the meaning of constitutional rights

Attorney Scott Keller was arguing against the mandates for the National Federation of Independent Business, saying that the Occupational Safety and Health Administration (OSHA) doesn’t have the authority to require workers to get tested for or vaccinated against COVID – even though OSHA’s purpose is to “assure safe and healthy working conditions for working men and women.”

His argument was based on the word “necessary.” He said that OSHA didn’t spend enough time looking at alternatives to vaccines and testing before passing the mandate, so it might not be “necessary.”

OSHA, he argued, should go “industry by industry, workplace by workplace” and make small changes like putting up barriers. The vaccine-or-testing mandate, he said, happened too fast and isn’t tailored to the nuances of every workplace.

“More and more people are dying every day. More and more are getting sick every day,” Kagan told him. “And this is the policy that is most geared to stopping all this. There’s nothing else that will perform that function better than incentivizing people – strongly – to vaccinate themselves.”

“So whatever ‘necessary’ means, isn’t this necessary and grave?” she asked.

Keller started to answer that OSHA has to “consider and explain alternatives,” but instead it “jumped immediately to a vaccine-or-testing mandate.”

“Mr. Keller, I guess I just don’t see this as a typical ‘arbitrary or capricious’ situation where we say, ‘Oh, you didn’t consider an alternative carefully enough,'” Kagan said, her voice dripping with sarcasm. “We all know what the best policy is. I mean, by this point, two years later, we know that the best way to prevent spread is for people to get vaccinated.”

“Why isn’t that necessary? What else should be done?” she said, exasperated.

“The agency has done everything but stand on its head to show, quite clearly, that no other policy will prevent sickness and death to anywhere like the degree this one will.”

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