Supreme Court justices make puzzling claims about COVID stats in challenges to vaccine mandates

Justice Sotomayor wildly overstates child hospitalizations with COVID. Justice Breyer claim about unvaccinated hospitalizations appears to be pre-Omicron.

Updated: January 7, 2022 - 11:09pm

President Biden's assertion that COVID-19 remains a "pandemic of the unvaccinated" may be challenged by ongoing global research, but not by certain members of the U.S. Supreme Court.

In oral arguments Friday, liberal justices made questionable and unchallenged factual assertions to defend the Occupational Health and Safety Administration (OSHA) vaccine-or-test mandate for large employers and the Centers for Medicare and Medicaid Services (CMS) healthcare worker vaccine mandate. 

The National Federation of Independent Businesses and Ohio are seeking a halt to the Jan. 10 enforcement deadline given by OSHA, while Missouri and Louisiana want the high court to keep in place injunctions against CMS by trial courts.

Justice Sonia Sotomayor repeatedly denied the OSHA mandate was a "mandate" because of the test option, but her claim that 100,000 children were in "serious condition" with COVID — more than the total number hospitalized since August — drew particular bafflement. 

Observers noted the current federal child hospitalization count is 3,342. American Commitment CEO Phil Kerpen tweeted that many or most were "incidental" to their hospitalization, echoing a distinction recently made by Dr. Anthony Fauci and CDC Director Rochelle Walensky.

Justice Stephen Breyer at one point claimed 750 million people tested positive for COVID Thursday, misstating his repeated claim that 750,000 tested positive. The daily average Thursday was about 611,000

Breyer also claimed 99% of hospitalized patients were unvaccinated, possibly referring to figures from January-August 2021, before the Omicron variant wave hit the fully vaccinated.

OSHA's emergency temporary standard (ETS) for employers with more than 100 employees is focused on "a different pandemic" — the Delta variant wave of last summer, attorney Scott Keller argued for the National Federation of Independent Businesses. 

He's vaccinated and boosted, but "vaccines do not appear to be very effective in stopping transmissions" in the Omicron wave, Keller said. 

Even some federal entities want out of the mandate, he added, citing exemptions sought by the U.S. Postal Service and Amtrak.

OSHA itself estimates 1-3% of workers will quit rather than get vaccinated or get tested weekly and wear masks.

"We all know what the best policy is," Justice Elena Kagan told Keller in defense of OSHA. "The best way to prevent spread is to get vaccinated," and the second best is to wear masks. Why then, the lawyer retorted, didn't OSHA didn't mandate vaccinations for healthcare workers in its June ETS?

Sotomayor insisted that humans were no different than machinery for the purpose of OSHA's authority. Using the example of a machine that shoots off sparks, she asked "why is a human not like a machine if it's spewing virus?" 

Conservative justices alluded to White House Chief of Staff Ron Klain admitting the OSHA mandate was a "workaround" for President Biden's lack of authority to mandate private sector vaccinations.

Chief Justice John Roberts asked Solicitor General Elizabeth Prelogar why the mandates should be "particularized" to OSHA and CMS. It looks like the government is trying to "work across the waterfront, and it's just going agency by agency" with vaccine mandates. 

Justice Samuel Alito suggested the OSHA mandate was like "squeez[ing] an elephant into a mouse hole." Alluding to adverse event reports following COVID vaccination, Alito asked if OSHA has previously approved safety regulations that impose "extra risk" to some groups.

The feds are relying on the 50-year-old Occupational Safety and Health Act to justify a mandate for 80 million employees to mitigate round-the-clock infection risks, when "Congress has had a year" to specifically grant OSHA that authority, Justice Neil Gorsuch said.

That law specifically grants OSHA authority to protect employees from "grave danger" caused by "physically hazardous agents" and it mentions immunizations, Prelogar responded: Unvaccinated workers both cause and are at highest risk of that grave danger. 

She told a skeptical Gorsuch that OSHA didn't mandate vaccines for influenza because it's "seasonal" and not anywhere near the same risk as COVID, or for polio because "virtually all workers are vaccinated" against it already. 

The right-left split was less apparent in the CMS healthcare worker mandate challenged by Missouri and Louisiana, given that it involves conditions on federal money and standing issues.

Roberts and Sotomayor each noted the states agreed to let the Department of Health and Human Services impose health and safety requirements for patients in return for the money. Alito wasn't sure the funding conditions clearly conveyed that workers might be subject to a vaccine requirement.

Justice Brett Kavanaugh asked whether the states had standing given that the regulation applies to facilities accepting CMS funds, who did not challenge it.

Kagan returned to her argument from the OSHA case that mandating vaccinations might actually prompt the return of workers who left their workplaces for fear of COVID. Missouri Deputy Solicitor General Jesus Osete had warned that rural states could suffer even worse shortages of healthcare workers if some quit rather than get vaccinated.