A challenge to New York City’s COVID-19 vaccine mandate for its municipal workforce is getting new life in the Supreme Court under Justice Clarence Thomas.
The case, brought on behalf of NYPD detective Anthony Marciano, is set to be reviewed by justices in an Oct. 7 conference. The decision comes about three weeks after Justice Sonia Sotomayor, a Bronx native, rejected an emergency request for an injunction over the same case.
Though a conference does not necessarily guarantee a decision on the merits of the case, it could. The private convening also represents movement in litigation on the city’s vaccination requirements — which have been vigorously contested with little success to date.
“After Justice Sotomayor declined it, I had an option to go to another justice,” said attorney Patricia Finn, who is representing Marciano in the case. “I think the whole bench is remarkable, but [Justice Thomas] had rendered opinions previously that were consistent with the relief that I’m looking for.”
Lawyers for Marciano resubmitted their request to Thomas on Sept. 1. News of his decision to accept the application, which was first reported by POLITICO, comes the same week that the Adams administration announced it would be ending its vaccination mandate for private sector employees. This requirement is scheduled to be lifted Nov. 1 — but a similar one for NYPD officers and other municipal employees is remaining in place.
The new decision by the city was met with harsh criticism from several unions representing city workers, but on Wednesday, the mayor’s office stood by its vaccine mandate for municipal workers.
“The Supreme Court has rejected numerous attempts to have it take up lawsuits on the vaccine mandate, and a number of other courts have upheld the mandate, recognizing that it saves lives and is a condition of employment,” said mayoral spokesperson Fabien Levy.
The NYPD declined to comment on pending litigation.
Marciano, who did not qualify for a medical or religious exemption after the mandate took effect last year, first sued in state court in December, while Bill de Blasio was mayor. That lawsuit transitioned to federal court in Manhattan, where a judge dismissed it in March. It has been making its way through the courts on appeal since.
The Supreme Court has delivered a spate of decisions in recent months beyond vaccine mandates that have outraged some New Yorkers.
In June, the court majority struck down the state’s concealed carry law. A day later, the Supreme Court scuppered federal protections for abortion, prompting a flurry of actions to protect access in some cities and states, while others issued bans.
Finn rejected criticism that movement in Marciano’s case could be interpreted as political.
“All I’m looking for is a judgment on the law. Political? I suppose, but as an attorney, I have to believe that the court is free from bias and prejudice and political leanings,” Finn said. “They have to be. Or if they’re not, we’re doomed as a country.”