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Vaccine Mandate Foe to Argue Remotely After Testing Positive (3)

Jan. 7, 2022, 1:59 PMUpdated: Jan. 7, 2022, 2:59 PM

Justice Sonia Sotomayor won’t return to the courtroom with her colleagues on Friday for arguments over the Biden administration’s vaccine mandates for healthcare and other workers, while two of the attorneys arguing against the mandate will participate remotely to comply with the court’s Covid-19 protocols.

With coronavirus surging again in the capital, Sotomayor will participate remotely from her chambers, with her questions piped into the courtroom, a court spokeswoman said. The other justices are participating in-person. The court’s press office declined to say whether Sotomayor, who is a diabetic, had tested positive for Covid, though the fact that she’s in the building suggests that she hasn’t.

Ohio Solicitor General Benjamin Flowers and Louisiana Solicitor General Elizabeth Murrill will also participate remotely, according to the court. Both are arguing against the vaccine mandates.

Flowers, who is vaccinated and boosted, tested positive after Christmas, said Bethany McCorkle, communications director for the Ohio attorney general’s office. “His symptoms were exceptionally mild and he has since fully recovered,” McCorkle said. “The Court required a PCR test yesterday which detected the virus so for that reason he is arguing remotely.”

In a statement, a spokesman for the Louisiana attorney general’s office said Murrill will participate by phone “in accordance with the COVID protocols of the Court.”

The court’s guidance since returning to in-person arguments in October require any attorneys testing positive to argue over the phone.

This is the first time an attorney will appear remotely since the court’s return to in-person arguments in October. And it comes as the justices are considering whether to pause what the Biden administration says are necessary measures to stop the spread of the virus.

It isn’t the first time a justice has participated remotely while the other members appeared in-person. Brett Kavanaugh did at the start of the term after contracting Covid, and Neil Gorsuch had a stomach bug that kept him out of the courtroom in November.

The majority of the justices and lawyers are hearing the vaccine arguments in-person, even as other federal appeals courts have reverted to remote sessions heading into 2022 amid heightened spread of the omicron variant.

At issue is a mandate from the Occupational Safety and Health Administration, which requires either vaccine or testing for employers with 100 or more employees, and a separate mandate from the Center for Medicare & Medicaid Services which requires shots for healthcare facilities that accept Medicare or Medicaid patients.

In both, states or business groups are saying the federal agencies that adopted the mandates went beyond the authority granted to them by Congress.

The court will next hear arguments Jan. 10.

(Updates with Flower's positive test.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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