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.
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: