Patterico's Pontifications

1/19/2022

More on Justice Gorsuch’s Error in His Concurrence in the Vaccine/Testing Mandate Case

Filed under: General — Patterico @ 7:52 am



My Substack post on Justice Gorsuch’s error in his concurrence in the OSHA vaccine/testing mandate case was picked up by Howard Bashman at How Appealing, by Dan Abrams’s Law & Crime site, and by Josh Blackman at Reason. Bashman’s work often gets attention in the legal community and is the best shot for getting a correction. The Law & Crime blog unfortunately garbled the analysis but raised the issue more widely. Blackman identified the source of the error, which was helpful, but for reasons I will explain in an upcoming post for paid subscribers, in my view overly minimizes the impact of the error.

People mostly accepted the analysis that it was an error. I got some half-hearted efforts to justify the quote from one law professor, who conceded in the end that his objections did not amount to much. I think I will discuss some of this in another free Substack I hope to get out tonight or tomorrow morning. The good stuff comes later this week with the analysis of the cases. For that, you’ll have to pony up! Subscribe here.

6 Responses to “More on Justice Gorsuch’s Error in His Concurrence in the Vaccine/Testing Mandate Case”

  1. I changed the time on this to put Dana’s post on top of the site. Her post will be of more interest to most readers, and I didn’t want to distract attention from it with this.

    Patterico (e349ce)

  2. Looks like I needn’t have worried!

    Patterico (e349ce)

  3. “Looks like I needn’t have worried!”

    Ouch! That stung my conscience.

    Patterico, I don’t know why (actually, I do), but I feel the urge to apologize, on behalf of your readership, for the silliness (to which I, myself contributed) displayed on your previous post. Excepting those who were on topic, most of us got suckered into a manufactured “issue” like so many reality-show viewers. What a boorish way to reward you. Your post deserved better from us – we are not worthy…

    felipe (484255)

  4. Gorsuch is no Scalia? If we did not already know that, we found out in the sex discrimination case.

    Blackman’s “booking” anecdote? That’s basic stuff that every lawyer is supposed to do. We learn it in 1L Legal Writing.

    That Mountain McConnell labored for 342 days blocking an Obama appointment to bring forth a mouse? Partly correct, I suppose, but still the right thing to do. Garland would have been another liberal statist like Kagan.

    That none of Trump’s three appointees are really SCOTUS level, their records as Circuit Court of Appeals judges notwithstanding? Yeah, I think so, in retrospect, but you pays your money and you takes your chances.

    That all else being equal, the pretty girl will get all the attention? Well … ye-e-ah!

    nk (1d9030)

  5. I am just now seeing this post and didn’t know that you had bumped mine on top of yours yesterday morning. I had checked before I posted mine, and guess we may have overlapped. Anyway, I am an avid reader of your substack/legal observations. And as always, your take on the Gorsuch “mistake” was an interesting read, and you made a compelling case. Not being a lawyer, my take is limited and thus I spent a lot of time researching your points, OSHA, and the OSHA mandate. I am happy to see that the piece made the rounds and look forward to reading the responses you linked to in the post.

    Dana (5395f9)

  6. No, no, I did not bump yours on top of mine. I bumped mine under yours, by assigning it an earlier publishing time than its actual time. It did not exist when you published your post, and I wanted to keep your post at the top of the site.

    Patterico (e349ce)


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