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The Supreme Court’s three liberal justices made a series of head-shaking comments Friday during oral arguments over two Biden administration rules — one that implements vaccinate-or-test mandates on US companies that employ at least 100 people and another that requires most health care workers to get the jab.
The trio of Stephen Breyer, Elena Kagan, and Sonia Sotomayor made claims during oral arguments that could have been classified as incorrect, ignorant, misinformed or hysterically exaggerated.
Sotomayor, who did not join her eight colleagues on the bench for the arguments, but opted to take part remotely, was the worst offender. At one point, the Bronx-born jurist claimed that implementing the requirement for businesses was necessary because “Omicron is as deadly as Delta … we have hospitals that are almost at full capacity with people severely ill on ventilators.”
“We have over 100,000 children, which we’ve never had before, in serious condition,” Sotomayor added, “and many on ventilators.”
Not only did Sotomayor’s statement contradict experts who say Omicron is less severe than Delta, but it defied data from the Department of Health and Human Services showing a total of 3,342 confirmed pediatric hospitalizations with COVID-19 across the US as of Friday — making the justice’s math off by a factor of nearly 30.
Perhaps more disturbingly, Sotomayor said at another point in the argument that “I’m not sure I understand the distinction why the states would have the power” to institute a rule like the one being pursued by the Biden administration, “but the federal government wouldn’t.”
“Read the Commerce Clause and the 10th amendment lady,” snapped Republican political consultant Liz Mair on Twitter
. Indeed, the amendment in question states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Ohio Solicitor General Ben Flowers, to whom Sotomayor directed her comment, demonstrated the concept by affirming under questioning from Justice Clarence Thomas that his state could legally impose a similar vax-or-test rule, and even go so far as to mandate vaccination for every resident.
Elsewhere, Sotomayor asked why the Occupational Safety and Health Administration, which the Biden White House has charged with implementing the business rule, could not consider a person infected with COVID-19 to pose the same danger to colleagues as a machine emitting sparks.
That caused another uproar on social media, with National Review writer Michael Brendan Dougherty tweeting: “I love the idea that an Executive branch agency meant to protect worker’s rights is now adopting the argument that workers should be regulated like toxic chemicals.”
When Breyer waded into the fray, he suggested the OSHA rule was needed because “hospitals are full almost to the point of maximum” and that “750 million new cases” had been reported in the US yesterday — despite the fact that the population of America is around 330 million.
In addition, information from HHS shows that nearly 21 percent of inpatient beds and more than 18 percent of ICU beds nationwide were unoccupied as of Friday.
After hearing arguments for and against the OSHA rule, the court turned to a proposed vaccine mandate for health care workers at providers who receive funding from Medicare or Medicaid.
During arguments in that case, Kagan said that workers “have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients. I mean, that seems like a pretty basic infection prevention measure.”
However, medical experts say that vaccinated people can spread COVID-19, though potentially for a shorter period of time than unvaccinated people spread the virus.
A decision in both cases could come within days.
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