Supreme Court to consider taking up challenge to New York's vaccine mandate

NEW YORK — The U.S. Supreme Court will consider an NYPD detective’s challenge to New York City's vaccine requirement for municipal workers after all.

Last month, liberal Justice Sonia Sotomayor rejected a request by Det. Anthony Marciano to look further at his legal challenge — the outcome of which could have significant implications for Mayor Eric Adams' administration. But Marciano resubmitted the exact same request to conservative Justice Clarence Thomas, and the high court's press office confirmed Tuesday the case will be deliberated at a conference Oct. 7.

Marciano’s attorney said they decided to try again because of Thomas’ past stances.

"I reapplied to Justice Thomas, who is a strict Constitutionalist," attorney Patricia Finn of the group Make Americans Free Again, said in an interview. "I believed his previous opinions were in line with what I was arguing."

Marciano sued the city last year challenging a policy requiring municipal workers be inoculated against Covid-19. He did not qualify for religious or medical exemptions, but instead argued he'd acquired immunity through his front-line service and should be free to make his own decision about getting the jab.

His case began in state court and was quickly kicked up to the federal level. The Second Circuit Court of Appeals denied his request for a stay of the vaccine mandate while his case plays out, so he asked the Supreme Court to grant him that injunction or strike down the city’s policy altogether.

News that Marciano got the high court's ear came as Adams announced an end to the vaccine mandate for private-sector employees and students participating in after-school activities Tuesday. He did not, however, budge on the requirement for city workers.

Finn said the Supreme Court’s decision could grant the injunction or even decide the case on the merits.

"It is a legal question, and facts are not in dispute,” she said in an interview. “I think the court has been waiting for a case like mine. I think they are waiting for somebody to approach the issue in a very clean and straightforward way.”

A spontaneous ruling would be rare, however, and most applications for an injunction are denied.

The case, Finn said, is simple: State and federal laws prohibit vaccine mandates without the recipient's informed consent. And because Marciano did not give his consent, the suit alleges, his due process rights are being violated.

Thus far, lawsuits against the city’s mandate for city workers have failed, as state and federal courts have affirmed the city's broad power to enact vaccine requirements.

“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,” mayoral spokesperson Fabien Levy said in a statement.

On Monday — the same day POLITICO first reported the mayor’s intentions to drop the private-sector vaccine requirement — a union umbrella group sent a letter to First Deputy Mayor Lorraine Grillo and Office of Labor Relations Commissioner Renee Campion expressing outrage that the public-sector edict would remain intact.

“This city’s government has treated its dedicated public employees — people who prior to the availability of vaccines still got up in the morning to protect our streets, put out fires, pick up garbage, teach our children, and deliver vital social services, at risk to their own health — as disposable,” wrote Harry Nespoli, a co-chair of the Municipal Labor Committee, which includes the city’s largest public-sector unions.

Greg Floyd, head of Teamsters Local 237, said that he will wait to see if City Hall heeds the requests of labor leaders to apply the same standards to the public sector as the mayor is applying to private businesses.

“The first thing we are going to do is ask to have the same policy for our members who were dismissed, and we’ll take it from there,” said Floyd. “And if not, we’re going to consider legal action.”