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On the relevance of rhetoric, Alito and Gorsuch shift with the wind

Justices Samuel Alito and Neil Gorsuch apparently can't make up their minds about the legal relevance of politicians' rhetoric about various policies.

Officials in New York, eager to save lives and help end the pandemic, created a vaccination mandate for health care workers over the summer. It sparked litigation, with opponents ultimately turning to the U.S. Supreme Court in the hopes that conservative justices might block implementation of the policy.

As NBC News reported, that didn't work out well for the plaintiffs.

The Supreme Court declined Monday to block New York's vaccination mandate for health care workers, which has an exception for medical reasons but not for religious objections. The court denied a request for a temporary order to block the requirement while lawsuits against it proceed. The request was denied in a one-sentence order with no explanation, the normal procedure when such a request is denied.

The brief order was not, however, the Supreme Court's only comment on the case. Three conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — disagreed with the outcome in We The Patriots USA v. Hochul, saying the court should've issued an injunction and blocked enforcement of the policy.

In fact, Gorsuch wrote a 14-page dissent, in which he was joined by Alito, specifically complaining about New York Gov. Kathy Hochul and the rhetoric the Democrat used. The justices, both of whom were appointed by Republican presidents, said the governor's rhetorical record "practically exudes suspicion of those who hold unpopular religious beliefs." From the dissent:

"[Hochul] said that 'God wants' people to be vaccinated — and that those who disagree are not listening to 'organized religion' or 'everybody from the Pope on down.' Then the new Governor went on to announce changes to the State's unemployment scheme designed to single out for special disfavor healthcare workers who failed to comply with the revised mandate. This record gives rise to more than a 'slight suspicion' that New York acted out of 'animosity [toward] or distrust of' unorthodox religious beliefs and practices."

The same dissent listed a series of quotes about religion and vaccines from the Democratic governor that Gorsuch and Alito apparently didn't appreciate.

If only the jurists applied these principles consistently.

In June 2018, the Supreme Court sided with a cake-maker who discriminated against gay customers in Masterpiece Cakeshop v. Colorado Civil Rights Commission. At the time, Alito and Gorsuch took very seriously the rhetoric from members of the Colorado Civil Rights Commission when siding with the plaintiffs.

Soon after, in Trump v. Hawaii, the justices approved of the Trump administration's Muslim ban, deeming it religiously neutral. Gorsuch and Alito were among the justices who said the then-president's record of anti-Muslim rhetoric wasn't directly relevant to the case. It was the high court's job to look only at the text of the policy, the majority said, and not the words of the president who was executing the policy.

Three years later, wouldn't you know it, Alito and Gorsuch have decided that political rhetoric is legally relevant again.

Imagine that.