No, Justice Gorsuch Did Not Say Hundreds of Thousands Die From Flu Each Year

After the argument over the Biden Administration’s vaccine mandates before the Supreme Court, many on the left condemned Justice Neil Gorsuch for spreading disinformation on flu fatalities. This criticism seemed to grow after the three liberal justices on the Supreme Court were themselves criticized for false or misleading statements about Covid-19. In reality, Gorsuch was correct in his statement on flu rates despite attacks that are continuing by liberal commentators and bloggers. (For full disclosure, I testified in favor of Gorsuch’s confirmation before the Senate).

Gorsuch was accused of making a false statement during the argument over an emergency appeal over the Occupational Safety and Health Administration’s (OSHA) vaccine mandate.  In his questioning of the Solicitor General, Gorsuch noted “The flu kills, I believe, hundreds, thousands of people every year.” Many of us listened to arguments live due to the audio access allowed by the Court. It was played on multiple networks and Internet sites.

If you listen to the audio below (around 1:50), there is no clear “of” between hundreds and thousands. Frankly, it is hard to make out. Gorsuch just making the obvious point that there are other annual dangers that have never been addressed by OSHA in this way.

Nevertheless, the statement was reported as “The flu kills, I believe, hundreds of thousands of people every year.” The response was Pavlovian with press pile-on.

MSNBC regular and Above the Law writer Elie Mystal went all caps and was even able to attack Fox News at the same time: “NO IT DOES NOT. STOP GETTING YOUR MEDICAL STATS FROM FOX NEWS.”

Mystal later tweeted:

“I know Gorsuch, nor any conservative, nor any “omg I’m bored and want to go to the movies” person, will APOLOGIZE for their consistent Covid misinformation, but Covid is ORDERS OF MAGNITUDE more deadly then the GODDAMN FLU.”

The official court transcripts confirm that Gorsuch got his facts right. Mystal (who has a history of inflammatory writings) later admitted that Gorsuch said hundreds or thousands die from flu each year. However, he insisted that in all caps again that statement “IS ALSO WRONG.”

Thousands do die each year. Indeed, if anything, Gorsuch was being . . .  well . . .  too conservative. It is tens of thousands which only supports his argument that, despite such a large number of deaths, OSHA has not previously used this authority to mandate a flu vaccine for all workplaces with over 100 employees.

Nevertheless, the false accusation against Gorsuch is still raging across the Internet. Sites still have livid condemnations posted over a statement that Gorsuch did not actually make:

“The flu statement is patently false even though it is taken as gospel in right-wing media. Is this what conservative SCOTUS justices have stooped to? Repeating right-wing disinformation when hearing and deciding on monumental cases that affect the lives of millions of people?”

The same outrage by Mystal and others, however, was not expressed over Justice Sotomayor overstating Covid cases of children by over 20 times. Mystal did not go all caps to declare “STOP GETTING YOUR MEDICAL STATS FROM MSNBC NEWS.”

Justice Sotomayor made a wildly false statement about the rate of children with serious conditions from Covid-19. She claimed that “Omicron is as deadly as Delta and causes as much serious disease in the unvaccinated as Delta did.”

Sotomayor also claimed that “we have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.” The argument was used as a basis for arguing that the Court should just defer to the agency (and the national mandate).  The statement quickly drew “four Pinocchios” from the Washington Post.

The fact is that even justices make mistakes and this is a venial, not a mortal sin. As I said previously, I do not think for a second that these justices intentionally misstated these statistics.

Some reporters like Newsweek senior reporter James Lemon later apologized to Gorsuch.

The interesting thing is not the errors themselves but the fact that these statistics were being offered to oppose substantive judicial review in favor of sweeping deference to the agencies. Such factual errors on the rate or costs of Covid was more damaging to the left than the right of the Court in their respective arguments.

The false statements were offered as a type of “judicial notice” of the urgency of the mandates — and their undeniable necessity. The errors undermined the credibility of the justices in arguing for agency deference. This decision affects the very lives and livelihoods of 100 million workers. It was hardly reassuring for those workers and their employers to hear the justices basing their arguments on highly dubious or clearly false data.

Conversely, the rate of flu or Covid deaths was not critical to the arguments being raised by the conservative justices. They all acknowledged how serious this pandemic continues to be for the country. (All of the justices are vaccinated). Rather they were questioning who should make this decision and whether this is a “major question” that should be addressed by Congress.

Here is the audio record:

58 thoughts on “No, Justice Gorsuch Did Not Say Hundreds of Thousands Die From Flu Each Year”

  1. The difference is that Gorsuch’s comment formed part of a question, while The Wise Latina was reading testimony into the transcript of the proceedings.

  2. Makes me so happy to have a wise Latina on The Supreme Court. She held council with AOC before she made her declaration. Aren’t you happy too???

  3. But the flu DOES kill hundreds of thousands every year. Maybe not Americans but globally and it seems based on what you wrote, his comment was specifically talking about America. Even the leftist’s “bastion of truth” Wikipedia states this with estimates up to 650k in a bad flu year. The CDC before they decided to get rid of the flu *cough* because Covid became the new flu to sell to the easily indoctrinated so they had to pretend the regular flu disappeared *cough* would show tens of thousands every year as American flu deaths.

    Why the gaslighting by people that it doesn’t? Why do I live in a world where people keep refusing to accept reality if it doesn’t fit their narrative and agenda?

  4. When Robert Bork couldn’t be confirmed as a Supreme Court Justice over 30 years ago, to my mind that marked the decline in intellectual capacity, at least in the modern era, of one or more of the court’s current justices. God help us if Biden gets to choose any SCOTUS justice during his time in office, however short or long that may be. The talk of impeaching Biden once the GOP takes control of the House in November of this year is beginning to pick up some support from influential members of Congress, many of whom are staying quiet about it, for now.

  5. What I don’t understand is why there was not greater focus on the authority rather the policy. The policy of mandating workers to be vaccinated is arguably incoherent as we know that the vaccine only mitigates the effects of the disease on the vaccinated – it does not prevent transmission or infection of some new variant. Granted that the administration may have the authority to promulgate incoherent policies, but the real question is if the administration has the authority. I am surprised that the questioning seemed to drift from, what seems to this layman, the central point.

  6. Over the decades I have learned more truths than just death and taxes. Politicians always lie. Their supporters always lie. And those selected by politicians always lie.

    And what should one do when they occasionally tell the truth? Verify…verify…verify.

    It is very obvious Elie Mystal is a hack. He doesn’t care about his creditability. So, when he maybe correct no one will pay attention to him.

    How many in politics, pundits, and the media are ‘the boy who cried wolf.’

  7. The fact is that even justices make mistakes and this is a venial, not a mortal sin. As I said previously, I do not think for a second that these justices intentionally misstated these statistics.

    Prof, Turley has moved away from the admonishment; Don’t attribute to malicious, that, than can be explained by stupidity.

    So the leftist on the bench are just stupid? I’m not going with ignorant, because that is impossible for learned people that only have one job. Stay to the facts.

    Intentionally not being informed as you sit on the bench is stupidity.

    1. Agreed. I cannot an will not trust a judiciary that isn’t as educated of factual information as the general population they serve. The justices in question just ain’t that bright, and it is a wonder how they ended up where they are. Take note: Dem court packing will look exactly like this.

  8. USA in 2023…

    SC Justice: “In the aftermath of the typhoon, we should provide for the youth in Asia.”

      1. I’m steeling (sic) this as my own.

        “I’m not going with ignorant, because that is impossible for learned people that only have one job.”

        spelling error aside, taking credit for someone else’s work….hubris. Very Well done iowan2

  9. Get the Courts Out of Science
    By Jeffrey A. Tucker
    January 7, 2022

    This morning I listened to the oral arguments in the case of the Biden administration’s vaccine mandates as enforced by OSHA. It was a demoralizing experience.

    I heard some crazy things, such as a claim that “750 million” Americans just got Covid yesterday, and that 100,000 kids with Covid are in the hospital, many on ventilators. The correct number is 3,300 with positive tests, but not necessarily suffering from Covid. I further heard strong claims that the vaccines block disease spread, despite every bit of evidence to the contrary.

    It was my first time hearing oral arguments in the Supreme Court. I might have thought that facts on the ground would actually matter to people who are holding the fate of human liberty in their hands. I might have thought that they would be getting their information from somewhere other than their political intuition, mixed with wildly inaccurate claims from bloggers and media pundits.

    I was wrong. And that is deeply alarming. Or maybe it is a wake up call to us all. We have learned today that these people are no smarter than our neighbors, no more qualified to address complicated questions than our friends, and arguably far less informed than the Twittersphere about basic issues of Covid and public health.

    1. Get the Courts out of science only when public health officials stop infringing on constitutional rights

  10. The funny thing is that if he *had* said it, it would be true. Whether he said “hundreds…thousands” or “hundreds of thousands,” he didn’t say “in the United States.”

    From Johns Hopkins School of Medicine:

    “The World Health Organization estimates that 290,000 to 650,000 people die of flu-related causes every year worldwide.”

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