Yesterday, the 6th Circuit issued its first substantive opinion in the consolidated case that will determine the legality of OSHA vax-or-test emergency temporary standard. The opinion didn't determine any matters related to the substance of the mandate itself; it only addressed the procedural issue of whether the case would initially be heard by a three-judge panel of the 6th Circuit or an en banc panel comprised of the entire court. The answer — a three-judge panel initially will hear the case.
This opinion should not have been controversial or lengthy. And then Chief Judge Sutton and Judge Bush wrote 39 pages worth of scathing dissents arguing in favor of an en banc hearing. On what should be a purely procedural issue, they used phrases like "intrusion on individual liberty", "broad mandates with respect to medical procedures", "medical procedure than cannot be removed", and "abuse of power". The two dissenting opinions read like full-blown decisions on the merits of the OSHA mandate.
Judges Sutton and Bush tipped their hands, and in doing so destroyed any appearance of impartiality in the 6th Circuit's ultimate decision on the merits of this case. I'm not sure what they think they were accomplishing with these opinions, other than helping to further politicize an already overly politicized issue.
This case and the future of the OSHA ETS, at least on its first pass through the 6th Circuit, will now rest of the luck of a three-judge-panel draw. There are combinations of judges that will give this emergency standard a better chance at surviving than others. For example, the three judges who did not join the opinion denying an en banc hearing, Stranch (an Obama appointee), Gibbons (a W. appointee), and Griffin (also a W. appointee) is not the worst panel I could draw up to save OSHA's ETS. Did they tip their hand that they are judges that will be hearing this case? At least that panel would avoid some of the blatant partisanship that I fear could invade this process with Trump-appointed judges on the panel.
But make no mistake, OSHA's temporary rule still faces a stiff uphill climb, a point driven home by the scathing dissenting opinions.