Courts

Neil Gorsuch Cited Fake Flu Stats And Then Scrubbed The Transcript Like A Coward

Sonia Sotomayor made her own misstatement... but just decided to live with it.

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Supreme Court Nominee Judge Neil Gorsuch Meets With Sen. Mitch McConnell (R-KY) On Capitol Hill

(Photo by Alex Wong/Getty Images)

The oral argument for NFIB v. Dep’t of Labor, the case challenging the Biden administration’s proposed OSHA regulation penalizing certain businesses if they don’t vaccinate employees, provided a tale of two misstatements. And, by extension, a tale of two justices.

First, Neil Gorsuch — who does look like he’s running a multi-level marketing scheme — said that the flu kills “hundreds of thousands” of people every year.

It does not.

After getting dragged by observers over this, he had the official transcript of the proceedings changed to reflect him saying “hundreds, thousands” in an effort to memory hole his bad stats. Sadly but predictably, conservatives then came out of the woodwork to endorse Gorsuch’s claim that we’ve always been at war with Eastasia.

The Hollywood Reporter’s Eriq Gardner had the most concise response to this framing:

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Indeed there is! And it was remarkably clear![1]

Taking a step back, in his efforts to downplay the need for a workplace safety rule requiring COVID vaccinations, Neil Gorsuch suggested that other communicable diseases are just as bad and have never warranted a vaccine rule. To wit, he asked:

We have vaccines against that — that, but the federal government through OSHA, so far as I know, and you can correct me, does not mandate every worker in the country to receive such a vaccine. We have flu vaccines. The flu kills, I believe, hundreds of thousands of people every year. OSHA has never purported to regulate on that basis.

People misspeak all the time, so Solicitor General Elizabeth Prelogar rolled by the incorrect statistic by underscoring that COVID numbers are much worse. At this point, if Gorsuch really meant to say “hundreds, thousands,” he’d just accept that the COVID numbers were worse. Instead, he incredulously asks her “Are you suggesting that it doesn’t pose a grave risk?” indicating that he really thought the flu numbers were living in the same ballpark as the COVID numbers.

By contrast, Justice Sonia Sotomayor also cited a wildly false statistic during the oral argument.

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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 — in serious condition and many on ventilators.

That is untrue. Typically these stats are communicated in terms of “per 100,000” and she clearly just took the last part. In reality, it’s roughly “FIVE in 100,000” children.

But here’s the thing… she didn’t try to edit the transcript over this because her misstatement actually flowed the same way. Even massively pared down to 5 in 100K, this still represents a massive spike in childhood hospitalizations that “we’ve never had before.” She didn’t edit away reality because the crux of her question and the answer it elicited remained the same even with this error.

Here’s where we can check in on GWU Law’s Jonathan Turley, who dutifully checked his common sense at the door to back up Gorsuch with an article entitled “No, Justice Gorsuch Did Not Say Hundreds of Thousands Die From Flu Each Year“:

Thousands do die each year. Indeed, if anything, Gorsuch was being . . .  well . . .  too conservative. It is tens of thousands which only supports his argument that, despite such a large number of deaths, OSHA has not previously used this authority to mandate a flu vaccine for all workplaces with over 100 employees.

Now a word from our sponsor, Occam’s New 6-Blade Fission Slide Razor. So simple to use, you’ll never needlessly multiply entities beyond necessity again!

Turley accidentally stumbles into the truth before writing a whole article trying to resolve the cognitive dissonance that constantly rings in his head. The defense of Justice Gorsuch’s convenient edit rests on the foundation that he thought it might be true that only a few hundred people die from the flu every year and that this would be a reason NOT to have a stronger reaction to COVID. Taking his edit at face value means he went all in with the Solicitor General on an argument he was losing from jump. In the end, we’re asked to believe he didn’t cite fake statistics… he’s just stupid.

Screen Shot 2022-01-11 at 11.57.55 AM

Exactly.

I’m actually compelled to give Gorsuch the benefit of the doubt and conclude that he’s a cowardly liar trying to escape criticism for intentionally latching onto falsehoods.

[1] [UPDATE: Alas, not clear enough for Gorsuch super-fans who continue to harp on “not hearing an ‘of'” in the clip. But these audio truthers miss the phonics for the trees when they look for “of” instead of “hundreds of thousands.” Native speakers of American English rarely put the stress on “hundreds OF thousands” in a normal sentence. For myself, my rendition of that sentence sounds more like “hunrdeds-a-thousands.” It’s little more than a pause for me.

Which is why, context matters. The context based on the Solicitor General clearly understood him to say and the context based on Gorsuch continuing to ask follow-ups based on the premise that he believed annual flu deaths were comparable if not exceeding annual COVID deaths. Because, as the rest of this story details, to believe otherwise is to believe he was arguing, “you say a half million people is an emergency… but the flu kills around 700 people and we’ve never viewed it as the same kind of threat.” Which is just silly.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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