When The Fact Finding Supreme Court Fails On The Facts.

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Courtesy of A.F. Branco at Comically Incorrect.)

It truly was embarrassing. During last weeks Supreme Court hearing on whether the Biden administration’s OSHA vaccination mandate was legal and or Constitutional, three justices made statements that, to be fair, were whoppers of either ignorance or lies.

The OSHA rule was issued after months of President Biden claiming the authority to impose a national mandate and then admitting that he did not likely have such authority.

The OSHA rule was clearly “Plan B.”

Notably, while OSHA had discussed whether it could — or should — issue an “Infectious Diseases Regulatory Framework” covering airborne infectious diseases — long before the advent of COVID — it never did so. When the White House was looking for a workaround of the Constitution, OSHA suddenly found what it now claims to be clear authority.

It is not clear — from either a historical or a statutory perspective.

OSHA used an “emergency temporary standard” (ETS) that applies to a “grave danger” when such action is “necessary to protect employees from such danger.” An ETS is generally used to protect employees “from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards.” It can only be used in emergencies when “necessary to protect employees from such danger.”

The emergency need for the ETS seems as much political as health-based. After waiting for over a year, OSHA suddenly declared the need to promulgate an ETS without going through the required “notice and comment” process.

When President Trump sought to skip such notice and comment steps, it was challenged by Democrats as abusive.

While the Justices could not even really decide what was at stake, the comments from some Justices were head scratchers.

During the oral arguments over the Biden vaccine mandates last week, two largely disconnected views emerged from the right and left of the Supreme Court. Conservative justices hammered away at the underlying authority of the Biden Administration to issue these mandates, particularly after President Joe Biden’s own Chief of Staff admitted that the agency rules were “workarounds” of his constitutional limitations. Conversely, the liberal justices used the “equity” aspects of an injunction to raise more emotive, if not apocalyptic, arguments on the dangers of Covid-19. That led Justice Elena Sotomayor to make a claim about children with Covid that even the Washington Post called “absurdly high” and worthy of “four Pinocchios.”

The incident raised a sensitive issue for some of us who oppose the massive censorship programs on Twitter and other social media platforms. Justice Sotomayor was spreading “disinformation” on Covid-19, so could she be barred from Twitter? As you might expect the answer is no, but that is precisely the problem with the corporate censorship embraced by many today.

The controversial statement of Justice Sotomayor could not have come at a worse time. She and her two liberal colleagues were arguing against substantial judicial review of the mandate orders in favor of extreme deference for the agencies. They argued that there was no time to waste in light of the dire crisis facing the country.

However, all three justices made claims that were challenged in terms of their accuracy. Justice Stephen Breyer, for example, declared there were “750 million new cases yesterday, or close to that.” He added that “is a lot. I don’t mean to be facetious.” It was not facetious, it was false. (Justice Neil Gorsuch was also criticized for his claim on the death rate for flu).

Yet, Sotomayor’s claims were the most alarming:

“Those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did. … We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”

In an interview on Fox News, CDC chief Dr. Rochelle Walensky confirmed that there are actually fewer than 3,500 kids with the virus in hospitals.

We have to question why Justices on the Supreme Court who are tasked with deciding the “truth” of a matter argue things that are not factual.

We seriously doubt whether the Justices sat in their offices and poured over data and perhaps these statements were prepared by their law clerks. Still, that doesn’t excuse the misinformation that Justices based their arguments upon.

Sotomayor also continually said that the OSHA rule was not a “vaccine mandate.”

That is a dubious claim as well as the OSHA rule requires that people in the workplace of businesses with over 100 people be vaccinated or tested daily. The inclusion of required vaccinations means to us that the proposed rule is, to some extent, a mandate.

(It should also be noted that the rule applies to people that work at home. That’s an interesting requirement as the government argues that the rule is necessary to protect co-workers in the physical workplace. We aren’t sure how someone working from home can infect or protect others when they aren’t in the same building.)

Sadly, the Supreme Court hearing sounded more like a debate on the floor of a legislative body than a case before the highest court in the land.

Even the claims of the number of deaths caused by COVID is dubious.

On Sunday, Brett Baier interviewed Dr. Rochelle Walensky, head of the CDC.

Center for Disease Control Director Dr. Rochelle Walensky was unable to provide the number of people who died with a COVID-19 diagnosis as opposed to those who have died because of their COVID-19 diagnosis when pressed by Fox News host Bret Baier on Sunday.

“Do you know how many of the 836,000 deaths in the U.S. linked to COVID are from COVID or how many are with COVID but they had other comorbidities, do you have that breakdown?” Baier asked.

“Yes of course, with Omicron we’re following that very carefully. Our death registry, of course, takes a few weeks to collect and, of course, Omicron has just been with us for a few weeks, but those data will be forthcoming,” Walensky replied.

COVID has been going on for over well over two years. The head of the CDC says that they will have the data in a few weeks for a data set that extends back years?

While COVID has been politicized in the extreme, governmental response to COVID at every level can only be described as a failure.

We just hoped that the failure would not reach the Supreme Court – that the Justices would work on the facts and the laws and not lie, or misrepresent ideas.

Whether those misrepresentations were intentionally or not is a matter that only the Justices and perhaps their staff and clerks know.

That they are basing their decisions in part on those misrepresentations cannot be ignored.

Audio of the Supreme Court hearing:

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