Ping-pong ball bounce could determine vaccine mandate's fate

The fate of President Joe Biden’s COVID-19 vaccine mandate for private employers could come down to the bounce of a ping-pong ball.

Republican officials in 27 states, employers and several conservative and business organizations filed challenges to the mandate in numerous federal courts shortly after the U.S. Occupational Safety and Health Administration released details of the emergency rule Nov. 4. Several unions also filed challenges in other federal courts, contending it doesn't go far enough.

The cases are expected to be consolidated under one of the circuit courts in a decision expected as soon as Tuesday.

Which federal court ends up with the case could determine whether the requirement gets tossed out, a reflection of how the judiciary has become politicized in recent years. The New Orleans-based 5th U.S. Circuit Court of Appeals, where a majority of justices were nominated by Republicans, issued a ruling putting the mandate on hold.

Allison Orr Larsen, a professor at William & Mary Law School, coauthored a study published this year that found growing partisanship in federal judicial decisions. For decades, the study found that rulings on cases in which all judges in a circuit weighed in generally were not decided along party lines based on the presidents who appointed the judges.

“We did see a concerning spike starting in 2018 that led us to wring our hands,” Larsen said in an interview.

The increasing partisanship in a branch of government that is supposed to be blind to partisan politics was seen in judges appointed by presidents of both parties, but Larsen said it's not clear why that was or whether it will last.

Some of the federal courts moved to the right when Donald Trump was president and Republicans controlled the U.S. Senate, which confirms...