On Friday, the Supreme Court heard arguments over the Biden administration’s COVID vaccine mandate for employers, and support for the mandate from the Court’s liberal justices was evident in their questioning, which was full of absurd assertions and flat-out misinformation about COVID policy and the virus’ impact on society.
As the Court listened to arguments regarding the Occupational Health and Safety Administration’s (OSHA) vaccine mandate for private employers, the Court’s liberal justices showed strong support for the mandate, potentially because of an overestimation of the effectiveness of vaccines and an exaggerated belief in the severity of COVID. The three justices also showed an alarming ignorance of and lack of concern for federalism.
Justice Elena Kagan claimed, “We all know what the best policy is, we know the best way to stop spread is for people to get vaccinated and to stop serious illness is for people to get vaccinated. The second best is to wear masks. Why isn’t that necessary, what else should be done?”
Critics immediately pounced, stating that those claims fail to recognize that vaccines have not been effective at stopping the transmission of the Omicron variant and that masks are ineffective at stopping transmission of COVID in general. Scott Gottlieb, the Food and Drug Administration’s former commissioner, said, “Cloth masks aren’t going to provide a lot of protection. That’s the bottom line. This is an airborne illness. We now understand that, and a cloth mask is not going to protect you from a virus that spreads through airborne transmission. It could protect better through droplet transmission, something like the flu, but not something like this coronavirus.”
Justice Stephen Breyer spread further misinformation when he claimed that “hospitals are full almost to the point of maximum” and that 750 million people tested positive for COVID-19 on Thursday. According to the U.S. Department of Health and Human Services (HHS) only about 77 percent of inpatient beds and 78 percent of ICU beds are in use, with only about 18 percent of inpatient beds and 30 percent of ICU beds currently being used for COVID patients. As for the number of positive tests, the U.S. population is 330 million, so clearly 750 million people did not test positive on Thursday.
Justice Sotomayor was the worst offender, however. She claimed that “Omicron is just as deadly as Delta,” a claim that even Biden’s chief medical adviser Dr. Anthony Fauci debunked. Sotomayor also claimed, “We have over 100,000 children, which we’ve never had before, in serious condition…and many on ventilators.” That claim was so far off that the Washington Post gave it four Pinocchios. Instead, HHS showed that there were just 3,342 pediatric hospitalizations with COVID. Fauci also noted that those are hospitalizations with COVID not from COVID.
“If you look at the children [who] are hospitalized, many of them are hospitalized with COVID as opposed to because of COVID,” Fauci said. “What we mean by that is that if a child goes in the hospital, they automatically get tested for COVID, and they get counted as a COVID-hospitalized individual, when in fact, they may go in for a broken leg or appendicitis or something like that.”
Sotomayor’s gaffes didn’t stop there. At one point she showed no understanding of the concept of federalism. She said, “I’m not sure I understand the distinction why the states would have the power” to institute such a rule, “but the federal government wouldn’t.”
Republican political consultant Liz Mair responded on Twitter, “Read the Commerce Clause and the 10th amendment lady.”
The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Sotomayor also compared humans to machines and suggested that OSHA should be able to regulate them accordingly, saying that workers could be forced to wear a mask when a machine is spewing sparks. “Why is the human being like a machine if it’s spewing a virus, bloodborne viruses?”
If Supreme Court justices are going to rule on such important matters, they should at least have their facts straight. The liberal justices appear to want to cede unprecedented authority to a federal agency full of unelected bureaucrats, so the least they can do is make sure they are knowledgeable about the topic and not driven solely by fear. Instead, it looks like they are being influenced by hysteria and ignorance rather than their legal training and experience.
Sotomayor’s seeming lack of understanding of — or consideration for — the uniquely American principle of federalism is even more disturbing. She is a Supreme Court justice charged with upholding the Constitution, not a liberal activist. Is she unfamiliar with — or just disdainful of — the core doctrine that any powers not expressly given to the federal government belong to the states? Perhaps her view of federal powers coupled with her view of humans as little more than workplace machines to be regulated would explain her left-wing views that the federal government — not the states and not the people — should be in control of local health policy and personal medical decisions.
One can only hope that in the heat of the moment, the topic and two years of lockdowns simply got the best of their emotions. Let’s pray that when the justices get back to their chambers, they’ll remember their role, put aside their personal feelings, and thoughtfully and dispassionately interpret the Constitution based on the legal question at hand.
The future of the country, the role of federalism, the rule of law and reasoning, and the reputation of the Supreme Court itself are all at stake.