According to the Washington Post, Justice Sotomayor “went off the rails” during oral argument last week. Justice Sotomayor claimed that “over 100,000 children” are in “serious condition” from COVID-19. The Post gave Justice Sotomayor “four Pinocchios” for her “absurdly high” figure.
On Friday, the Supreme Court heard oral argument over the Occupational Safety and Health Administration’s (OSHA) so-called vaccine mandate. During oral argument, Justice Sotomayor asserted: “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, many on ventilators.”
According to Washington Post Fact Checkers, Justice Sotomayor’s statement was, “wildly incorrect.” The Justice appears to have been referring to hospitalizations, given her reference to ventilators. But according to CDC director Dr. Rochelle Walensky, the current number of pediatric hospitalizations due to COVID-19 is less than 3,500. As the Post put it, “Sotomayor’s number is at least 20 times higher than reality, even before you determine how many are in ‘serious condition.’”
Justice Sotomayor’s error was not just an overstatement but directly relevant to the legal standard at issue. OSHA claims the authority to require over 80 million Americans to be vaccinated or to test weekly. Its assertion of federal power is breathtaking. And it is not at all clear that Congress authorized the agency to take such far-reaching action. Indeed, at oral argument, a majority of the justices appeared skeptical that Congress had given OSHA so much power. Further, OSHA invoked emergency regulatory powers in order to dispense with the usual requirements of public notice and comment – procedural requirements generally designed to ensure that regulations are not overly burdensome. Those emergency standards require that employees face a “grave danger” in the workplace – thus Justice Sotomayor’s insistence that so many children are at risk. But as the Post observed, “it’s important for Supreme Court justices to make rulings based on correct data.”