"The Supreme Court agreed Monday to hear challenges to the admissions process at Harvard and the University of North Carolina..."

"... presenting the most serious threat in decades to the use of affirmative action by the nation's public and private colleges and universities.... In the latest case, groups backed by a longtime opponent of affirmative action, Edward Blum of Maine, sued Harvard and UNC in federal court, claiming that Harvard's undergraduate admissions system discriminated against Asian American students and that UNC's discriminated against both Asian American and white students.... The challengers in both cases, Students for Fair Admissions, urged the justices to overrule the court’s 2003 decision on affirmative action, which upheld the University of Michigan's use of race as a plus factor and served as a model for similar admissions programs nationwide...."

NBC News reports.

"How can the Washington Post say the court decisions on his vaccine or testing mandates were 'out of his control'?"

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts! Those court decisions didn’t happen at random; they happened because judges looked at what the administration did and decided that it didn’t comply with the law."

Writes my son John, at Facebook, commenting on "A year ago, Biden unveiled a 200-page plan to defeat covid. He has struggled to deliver on some key promises" (WaPo).

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts!" — We are all expected to pursue our goals and desires within the limits of the law. But we still can complain about the law that stands in our way and excuse our failure to achieve by pointing at this pesky law.

Sometimes you push the limits of the law and hope to convince judges. With a slightly different configuration of the Supreme Court, the vaccine mandate would have succeeded. Blaming the Court is worth doing to set up judicial appointments as a campaign issue.

And would the implementation of the vaccine mandate have served Biden's interests? Isn't he better off with it failing? He can point to it and say that he tried so hard and not be burdened with the realities of driving so many people out of employment, leaving businesses inadequately staffed, and imposing on the intimate personal bodily autonomy that his Party ordinarily celebrates. 

By the way: "Activists look ahead to what could be the 'last anniversary' for Roe" (NPR).

Speaking of the pending abortion case... did the Texas legislators "figure out a way to implement [their] policies that won’t get blocked by courts"? I'd say they deliberately overreached well-known law because they wanted to convince the Court to change it and, failing that, they wanted political credit for trying.

"Because the Court of Appeals concluded that President Trump’s claims [of executive privilege] would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision."

Said the Supreme Court, disposing of Trump v. Thompson with sublime efficiency. 

Justice Thomas would have granted what was an application for stay of mandate and injunction pending review.

Justice Kavanaugh wrote a statement that began:

The Court of Appeals suggested that a former President may not successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, at least if the current President does not support the privilege claim. As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward....

It's clear... but he chooses to write about it anyway:

Without sufficient assurances of continuing confidentiality, Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President’s duties depends.

ADDED: Now that this decision has come out, I find myself very interested in finding out the specifics of what Trump said and did while the siege of the Capitol was under way. I could have accepted executive privilege for the reason Kavanaugh stated, but that isn't what's happening and I like the opportunity to find out this important information — after all we've been through, including the second impeachment. I hope it's a big letdown for Trump haters, but if it's not, it will be good to know.

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

"The Supreme Court on Thursday blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers..."

"... dealing a blow to a key element of the White House’s plan to address the pandemic as cases resulting from the Omicron variant are on the rise. But the court allowed a more modest mandate requiring health care workers at facilities receiving federal money to be vaccinated. The vote in the employer mandate case was 6 to 3, with liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority...."

The NYT reports.

Here are the opinions — NFIB v. OSHA and Biden v. Missouri.

From the OSHA case:

This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority. 

The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace)....

From Biden v. Missouri:

[H]ealthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare.... [T]he Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves.... Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before.... Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella....

We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

From the dissent in the Biden case. This is by Justice Thomas (joined by Justices Alito, Gorsuch, and Barrett):

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Ibid. (internal quotation marks omitted). The omnibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King, 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.

"Just as an MSNBC anchor is saying, 'We're also watching the Supreme Court. It could be a big day'"/"And just like with the Texas abortion cases, SCOTUS has faked us all out. No more opinions today"/"SCOTUS is definitely trolling us..."

 Commentary at SCOTUSblog just now.

"Omicron Makes Biden’s Vaccine Mandates Obsolete/There is no evidence so far that vaccines are reducing infections from the fast-spreading variant."

Commentary by Luc Montagnier and Jed Rubenfeld (in The Wall Street Journal)("Dr. Montagnier was a winner of the 2008 Nobel Prize in Physiology or Medicine for discovering the human immunodeficiency virus. Mr. Rubenfeld is a constitutional scholar").

It would be irrational, legally indefensible and contrary to the public interest for government to mandate vaccines absent any evidence that the vaccines are effective in stopping the spread of the pathogen they target. Yet that’s exactly what’s happening here.

The government's mandates came out when the concern was Delta, not Omicron, and therefore its "findings are now obsolete."

The Supreme Court held in Jacobson v. Massachusetts (1905) that the right to refuse medical treatment could be overcome when society needs to curb the spread of a contagious epidemic. At Friday’s oral argument, all the justices acknowledged that the federal mandates rest on this rationale. 

But mandating a vaccine to stop the spread of a disease requires evidence that the vaccines will prevent infection or transmission (rather than efficacy against severe outcomes like hospitalization or death).... For Omicron, there is as yet no such evidence.

The little data we have suggest the opposite. One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection....

According to the CDC, the overwhelming majority of symptomatic U.S. Omicron cases have been mild. The best policy might be to let Omicron run its course while protecting the most vulnerable, naturally immunizing the vast majority against Covid through infection by a relatively benign strain....

It is axiomatic in U.S. law that courts don’t uphold agency directives when the agency has entirely failed to consider facts crucial to the problem....

"Historically, and almost definitionally, a gridlocked Congress that cannot pass laws tends to be better for conservative reactionaries than progressive activists."

"Lawmakers also lack the mastery of esoteric issues, say soil runoff, that civil servants can master. When the courts force Congress to expressly decide, usually either nothing happens — or lobbyists sit in the driver’s seat. Pushing decision-making to Congress from the civil service, or what Trump disdainfully called the 'deep state,' is a goal of the conservative legal project shared by Chief Justice John G. Roberts Jr.... The reality is, even if they tried, the Democratic-controlled Congress probably couldn’t cobble together the votes to pass a mandate like OSHA’s. Ten Republicans in the Senate wouldn’t cross over to break a filibuster. Republicans are emboldened because they think opposition to vaccine mandates in the off-year Virginia elections helped win all three statewide races and flip the House of Delegates."

From "How blocking Biden’s vaccine mandate would be a Supreme Court gift to Trump" by James Hohmann (WaPo).

The Biden administration is relying on general language in a statute passed over a half century ago as it tries to do something that we know Congress won't do on its own, even though Congress has been able to see the problem to be solved for at least half a year. The administration's mandate is such an aggressive imposition on people, and the position of Congress is, essentially, to spare us. It looks as though the Supreme Court is about to make Congress's answer — no mandate — the final answer. 

Isn't that the most democratic — small "d" democratic — resolution of the lawmaking conundrum?

"Conservative Supreme Court justices on Friday appeared skeptical that the Biden administration has legal authority to impose a broad vaccination-or-testing requirement on large employers."

"They seemed more in agreement with private businesses and Republican-led states that such policies need to be approved by Congress or implemented by state governments than a federal agency — in this case, the Occupational Safety and Health Administration (OSHA). Chief Justice John G. Roberts Jr. was among the conservative justices, who make up a majority of the court, to wonder whether Congress had given authority for agencies 'to enact such a broad regulation.' The Biden administration’s solicitor general, Elizabeth B. Prelogar, said Congress had given just such a power for the agency to enact emergency standards to protect workers in the midst of an unprecedented pandemic."

WaPo reports.

I listened to much of the oral argument, and I thought Prelogar was superhumanly great. I don't think I have ever heard someone speak so quickly for so long without sacrificing any lucidity, terseness, or enunciation. Here's her Wikipedia page. I see that she was Miss Idaho in 2004, she's fluent in Russian, and she has sons who are named Blaise and Beckett (which I'm just guessing is a tribute to Blaise Pascal and Samuel Beckett).