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:

https://www.c-span.org/video/?516920-1/supreme-court-oral-argument-covid-19-vaccine-mandate-large-employers&live=

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

  1. I doubt if Mystal knew, when he wrote that phrase, what an “order of magnitude” is. It sounds technical and scientific, and I am sure that was all he knew about it.

  2. “China Flu, 2019” is not deadly; comorbidities are deadly.

    Gorsuch has nothing to do with disease; Gorsuch must decide whether actions comport with law.

    Congress has no “emergency” power.

    Congress has no power to issue mandates; Congress has no power to compel healthcare.

    Congress has no power to imbue the executive branch with the power to issue mandates.

    Congress has the power to regulate only the value of money, commerce among the States, and land and naval Forces.

    “Necessary and proper” laws are limited and restricted to powers provided by the Constitution, which is redundant and understood.

  3. The speed at which the covid and vaccine narratives are collapsing is just jaw dropping. Dr. Pierre Kory was on one of the Fox news shows; Tucker Carlson openly talked about Pfizer tonight; Walensky and Fauci have both said that covid cases have been over counted, particularly among hospitalized and dead patients, by a factor of 50%. I’m taking bets on which day this week the left’s networks will begin climbing down out of the tree they managed to get themselves up into in their support of the covid and vaccine narratives.

  4. Professor Turley, To fully understand and assess this issue, don’t you think the reader of your blog would have benefitted from knowing that there was an original official transcript of what Gorsuch said and then a revised correction to the official transcript of what he said. Please provide full and appropriate context in your blog and columns when discussing issues. Thanks.

    1. Concerned citizen:
      “Professor Turley, To fully understand and assess this issue, don’t you think the reader of your blog would have benefitted from knowing that there was an original official transcript of what Gorsuch said and then a revised correction to the official transcript of what he said. Please provide full and appropriate context in your blog and columns when discussing issues. Thanks.”
      *********************
      Yeah, a contemporaneous broadcast of an oral statement of a human always pales to a transcript of that statement typed by a human. You get so much nuance in the typed word! No wonder our society is in the train wreck state if this is what “concerns” citizens.

  5. “the statement was reported as “The flu kills, I believe, hundreds of thousands of people every year.””

    Yep. It was reported that way because that’s what the official transcript originally said. And JT should know this, because the WaPo article he touts about Sotomayor stated that the official transcript said that and would presumably get corrected.

    But JT can’t bring himself to acknowledge this, because it undermines his effort to stoke the”age of rage” he complains about repeatedly.

    The professor doth protest too much methinks.

  6. On average, the USA suffers 30k flu deaths a year. Surprisingly (or not), last year the CDC recorded less then 2k flu deaths. Quite a decline, no?

    However, if you want to think in terms of the whole world, then there are MILLIONS of flu deaths each and every year that OSHA , the WHO and other agencies have been ignoring all these years!

    As for truthspeak in off-the-cuff, real time comments from SCOTUS, it’s impossible to guarantee accuracy for anyone that isn’t immersed in the day-to-day stats and news of Covid. They are more likely to get stats wrong.

    Now, what would be cool might be if the Justices wore earpieces that would allow their staff members to inform them that they made a serious mistake in a comment and what the correction was giving the Justice the opportunity to make a real or near real-time correction. Like Jeopardy has been doing for a long time.

    1. As for truthspeak in off-the-cuff, real time comments from SCOTUS, it’s impossible to guarantee accuracy for anyone that isn’t immersed in the day-to-day stats and news of Covid. They are more likely to get stats wrong.

      This is rationalization to the nth degree.
      1) This was a HUGE event For the court. The potential to CHANGE the administrative Goliath. Limit executive power, define emergency powers. This was a B F D, to use a Biden colloquialism.

      2) Lawyers know to use numbers is a big risk to your credibility. Numbers are not opinion. There is precious little room for qualifying language. To say there are X number in the hospital, is stupid to the max, A law student, a lawyer, a judge, a Supreme Court Justice, would be an idiot for stating a number, in court, without reading that number from a source. “according the the CDC, the latest numbers show us…”

      No. The justices were busy doing what they have been conditioned to do. Emotional appeals, to set a narrative.

  7. Gorsuch may have erred or been misquoted, but he certainly didn’t outright lie as Sotomajor did. She complained about the “stench of politics” on the court — but it’s coming from her.

  8. “Sotomayor also claimed that “we have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.”
    **********************
    Lib Liars is now a redundant phrase. Seems so is Projecting Progressives.

    1. The press releases & news reports have been like a stream of comedians coming on stage lately.

      Another from that Liberty site below:

      WND
      Share
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      Pfizer CEO: 2 shots ‘offer very limited protection, if any’
      Admits mRNA vaccines don’t have ‘the safety profile that we hoped’ for
      Art Moore By Art Moore
      Published January 10, 2022 at 4:18pm

      https://www.wnd.com/2022/01/pfizer-ceo-2-shots-offer-limited-protection/

      Say What? LoL/// Pfizer CEO: Oops Our Bad, mRNA Tech was phk’in up to many people & many died already or later from the Heart Damage, Stokes & blood Clots.

      I can hardly wait for Pfizers next tranche of research docs to be publicly released.

  9. Let’s make it easy. If a leftist says it and the cause is to advance “social justice” and “equity”, it is true. Being factually accurate is actually part of the “white supremacist” system designed to oppress minorities.

    antonio

  10. The left lies. What else is new? The left is uninformed. What else is new? Sotomayor will force others to get the jab because she is fat, diabetic and at high risk. Sotomayor isn’t deserving of a seat on the SC bench. She should recuse herself on all things Covid and go to a weight loss clinic. Wait, we should ask her if she should be forced to go to a weight loss clinic? That might reduce her likelihood of filling up another Covid bed.

  11. The question at hand boils down to, whose decision should it be whether or not to get vaccinated? You, your employer, your school, your state, or your federal government.

    Pressure to get vaccinated boils down to impoverishment due to job loss, denial of education, and denial of public space.

    People can be for something like a vaccine, but against its being forced.

  12. 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.

    My naïve understanding of SCOTUS is their fundamental role is to hear arguments regarding the constitutionality of the governments exercise of power. I fully expect the Executive or Legislative branches to make every possible argument, oftentimes a hyperbolic and emotional one, to advance legislation or administrative action. I even expect those arguments to be riddled with factual inaccuracies or blatant lies. But when a case is brought before the court, I did not expect it would be the court arguing with factual inaccuracies or blatant lies. It kind of puts the solicitors arguing against the mandate in an unenvious position. Assuming they knew for instance that Sotomayor was citing ridiculous data, how do you “respectfully” inform the court of the error, without embarrassing the entire court?

  13. Try again, Turley. The SCOTUS issued a REVISED transcript to correct Gorsuch’s error. Why would they need to revise what he said if it wasn’t wrong? Gorsuch said “hundreds of thousands”. The SCOTUS issued a statement that the transcript was being “revised” to correct this to “hundreds, thousands” because there aren’t “hundreds OF thousands” of flu deaths. You are becoming more and more Trumpian every day: just can’t admit to the truth of anything, even things that are recorded, and constantly go on the attack against Democrats, women, especially minority women, and mainstream media.

    1. Let’s put two and two together, shall we? On Thursday a judge told the FDA to start releasing the Pfizer test results in a few weeks. This weekend CDC director and others start dropping truth bombs. No relation, right???

      @publicdomainiac

    2. You know that oral argument is recorded and you can go to SCOTUS website and listen to it? I listened in real time. I remember that the statement was “hundreds, thousands” at the time I did not take it as “hundreds of thousands.” As far as written transcript goes, it should reflect what was actually said. Revisions to correct a court reporter error is not a scandal or conspiracy to alter the truth. I wish both sides would stop believing in these wild conspiracies. But in the end it doesn’t matter. The question is the same,: Does OSHA have authority under its existing statute to mandate a vaccine for employees of employers with 100 employees or more. My question (which doesn’t really matter) but why would OSHA exclude the employers of less than employees from the same rule? The virus doesn’t distinguish between 99 and 101 employees.

      1. My question (which doesn’t really matter) but why would OSHA exclude the employers of less than employees from the same rule? The virus doesn’t distinguish between 99 and 101 employees.

        😉 Because the revenue and stock market projections for big pharma were based on the 100+ mandate alone. Of course the safety and health of employees in the 99 and under crowd is of no concern to the government. Or something like that.

    3. He didn’t say hundred OF thousands. He actually said hundreds? Pause Thousands? I listened to the whole thing while attempting to work. You hear what you want to. It makes no difference. No one will take my choices away…not Biden, not OSHA, not Trump (unless you are conceding that he doesn’t impede people’s right to choose their own destiny.

      1. I agree. This is very similar to what CNN did to Dershowitz. They ignored a timely pause in Dershowitz’s argument to the Senate. Then doubled down and edited the video to take out a word and a pause to make it look like Dershowitz said nearly the opposite of what he actually said. That is why CNN is being sued by him. CNN heard it the way they wanted it, but then took the extra step to doctor the footage. CNN has no credibility.

        1. kunstlersghost: It’s becoming their MO — when the Dems can’t win honestly and fairly, they will resort to “whatever it takes.”

    4. Natacha has an IQ so low, Morons look like geniuses… and Sotomayer is so morbidly obese she may weigh over a thousand pounds!!! Taken in context these statements are much more accurate than the wildly exaggerated moronic statistics floated by this pair of dumb and dumber…

    5. Natacha: Not that you would bother exerting yourself to fact check, but if you listen to the oral argument — which is possible to do — you will hear that he said “hundreds, thousands.” Of course, the Dems need to deflect from the idiocy of Sotomajor, who is becoming an embarrassment to all Americans, but especially to Democrats. But what can we expect from a nominee of Obama the Woke?

      1. i related the facts: which are: that Gorsuch said “hundreds OF thousands”. That was in the transcript. The transcript was REVISED to take out the word “of” and to replace it with a comma because what Gorsuch said was wrong. That’s what happened. Not my opinion, but factually what happened. One reason this rings true is because everyone knows there aren’t merely “hundreds” of flu victims, either.

    6. No, Natacha, SCOTUS issued a revised transcript to correct the original transcript’s error.

      This column is about a nothingburger that let’s JT avoid more substantive issues, like the case Judge Mehta heard today about whether multiple civil suits against Trump can proceed, or if, as Trump argues, he can’t be sued for anything he said while President. They accuse Trump of conspiring to incite the Capitol riot. More at Buzzfeed: https://t.co/zyKmvjOgj8

  14. One good thing. After the humiliations of the ignoramous liberal justices maybe a few incompetent clerks will be chastised or fired and some of them will show up actually better prepared than a well-informed homeless person. If not drag one of them in to decide the case instead of these incompetents.

    It’s difficult to respect these people or their decisions. No wonder it looks acceptable to search for ‘work arounds’.

    1. That is the first thing I thought of: I wonder if a law clerk is going to be blamed. If I was the clerk that gave Soto this statistic, I would be afraid right now. Ive heard around 20 oral arguments at SCOTUS in person and more on the live broadcast or recording. It’s not unheard of for a justice to be wrong about an ascertainable fact. Most attorneys who argue before the court would probably tried to correct that—if they knew she was wrong at the time. I saw William Kunstler correct Chief Rehnquist in an argument about something like a statistic. Rehnquist just let Kunstler go, no repercussions. Rehnquist did not address the issue bc that wasn’t highly relevant to base a decision on—the same as this case.

  15. Just look at the Lefty posters on this blog.

    They are rabidly furthering the Gorsuch lie while defending Sotomayor’s statement.

    We are lucky enough to have a microcosm of Lefty mendacity right here.

    Thinking people looking at their posts are reminded what ugly people Lefties are.

  16. No, but they do!!! I ran a social service for almost two decades. The flu was the demise of many of the clients who had underlying health issues.

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