- The Washington Times - Monday, January 10, 2022

It seems even the Supreme Court isn’t immune from COVID-19 politics.

Justice Sonia Sotomayor, during Friday’s oral argument on some of President Biden’s vaccine mandates, was wildly off base in her claims of how serious the disease was. At one point, she said more than 100,000 children were currently hospitalized because of the coronavirus. She overshot the actual figure by nearly 30 times.

Justice Samuel A. Alito Jr., meanwhile, braved the wrath of COVID-19 purists by raising possible side effects to the shots, and Justice Clarence Thomas wondered aloud about the efficacy of mandating vaccines in the workplace.



“The younger workers, the 20-year-olds who are unvaccinated, are actually safer than the older workers who are vaccinated. So there are obviously some differences,” Justice Thomas said.

Nearly two years into the pandemic, the justices for the first time squarely faced big questions about the disease and the government’s medical efforts to try to tame the spread.

At issue were two of Mr. Biden’s vaccine mandates.


SEE ALSO: Arkansas Gov. Asa Hutchinson: Companies should wait for Supreme Court decision on OSHA mandate


One, issued by the Occupational Safety and Health Administration (OSHA), requires companies with more than 100 employees to either force compliance with shots or compel mask-wearing and weekly testing. That mandate covers about two-thirds of the private workforce and is slated to go into effect Monday, barring action by the Supreme Court.

The other mandate, issued by the Centers for Medicare & Medicaid Services, requires vaccinations for all medical personnel who get federal money from those two big programs. That covers about 10 million people and will be phased in over the next 2½ months.

Legal analysts saw the court’s Republican-appointed justices, who maintain a 6-3 majority on the bench, as skeptical of OSHA’s private-sector mandate, though the court overall seemed more open to the medical worker mandate.

With the deadline looming, several justices floated the idea of issuing a stay to buy more time to ponder the legal complexities.

The Biden administration was cool to the idea.

“There are lives being lost every day,” Solicitor General Elizabeth Prelogar warned the justices.

During more than three hours of oral argument, the Republican appointees questioned Mr. Biden’s approach. They said the president seemed to be trying to achieve a universal vaccine mandate by going through the government and seeing which agencies can compel which populations.

“This is something that the federal government has never done before, right — mandated vaccine coverage?” Chief Justice John G. Roberts Jr. asked the government’s attorneys.

Justice Sotomayor, an Obama appointee, compared the rules to OSHA mandates that businesses provide protection for people who work with machinery that produces sparks. She said there is no question that OSHA has that authority.

“Why is the human being not like a machine if it’s spewing a virus?” she asked.

Minutes later, though, she veered way off course while prodding the attorney for Ohio, one of a host of entities to challenge the business vaccine mandate.

“We have hospitals that are almost at full capacity with people severely ill on ventilators,” she said. “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”

Dr. Rochelle Walensky, director of the Centers for Disease Control and Prevention, told “Fox News Sunday” that the number was way off base. She said about 3,500 children are hospitalized.

“While pediatric hospitalizations are rising, they’re still about fifteenfold less than hospitalizations of our older age demographics,” Ms. Walensky said.

The internet lit up with criticism of Justice Sotomayor, one of nine people about to make a momentous ruling on COVID-19 policy, for being that far off in her information.

“Is Fauci advising Justice Sotomayor?” Sen. Rand Paul, Kentucky Republican, said in a post on Twitter. “Will YouTube censor her?”

Justice Alito, who, like the chief justice, was an appointee of President George W. Bush, was aware that his legal questions about the risks of vaccines would be misinterpreted.

He prodded Ms. Prelogar about some people who “will suffer adverse consequences” from a vaccine and questioned whether it made sense to impose an answer on someone who saw the risks differently, even if “very foolishly.”

Ms. Prelogar acknowledged “minimal risk” but said the vaccines are “safe and effective.”

“I tried to make it as clear as I could: I’m not making that point, I’m not making that point, I’m not making that point,” Justice Alito fired back.

He said his real point was legal: that OSHA has never before imposed a safety regulation that does impose a potential extra risk to workers.

At that point, Justice Elena Kagan, an Obama appointee, jumped in to say federal regulators make those kinds of balancing decisions all the time.

She led off the day’s argument with a grim summation of where things stand.

“This is a pandemic in which nearly a million people have died. It is by far the greatest health danger this country has faced in the last century,” she said. “This is the policy that is most geared to stopping all of this. There’s nothing else that will perform that function better than incentivizing people, strongly, to vaccinate themselves. So whatever necessary means, whatever grave means, why isn’t this necessary and grave?”

Businesses and Republican-led states opposing the mandate said they don’t question the value of vaccines. Still, they said, the justices aren’t sorting out medical policy, but rather who has the power to carry it out.

“States can do it. Businesses have done it and are able to do it. The question is not what this country is going to do about COVID; it’s who gets to decide that,” said Scott Keller, an attorney for the National Federation of Independent Business.

The justices have been grappling with COVID-related cases since virtually the first days of the pandemic as states rushed to impose shutdown orders. Many of those cases dealt with weighty but narrow matters, such as whether state and local officials could shut down in-person religious services.

Friday’s argument, by contrast, rested on statute and whether Congress gave — or even could give — the executive branch such broad power.

For more information, visit The Washington Times COVID-19 resource page.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Ryan Lovelace can be reached at rlovelace@washingtontimes.com.

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