Fifth Circuit Cites Junk Science And Vaccine Skeptics In Latest Opinion And That Should Absolutely Terrify Everyone

Wow. Just wow.

Close-up of bottles of COVID-19 vaccineThe Fifth Circuit just affirmed a summary judgment against a Mississippi tanning salon that had filed “civil rights” claims against the city for imposing a lockdown during the height of COVID. It’s a trash lawsuit because not only were public health measures necessary to save lives but even without a lockdown nobody wanted to go into an enclosed space and sit for an hour where strangers just hacked all over the booth.

Besides I thought sun was one of those things it’s easy to get in Mississippi, like welfare funds for building volleyball courts, and not one of those things it’s hard to get, like running, non-toxic water.

The panel, Edith Jones, James Ho, and Cory Wilson could’ve rubberstamped this one and moved on. Instead, Jones and Ho took the opportunity to show off the science they’ve learned from Newsmax and preen for their MAGA fanbase. As Jones writes for the majority:

Subsequent experience strongly suggests that draconian shutdowns were debatable measures from a cost-benefit standpoint, in that they inflicted enormous economic damage without necessarily “slowing the spread” of Covid-19. The balance of impacts was not well understood at the time, however, and we are constrained to affirm.

To back up her “subsequent experience strongly suggests” claim, as Raffi Melkonian flagged on Twitter, Jones cites inter alia:

See Great Barrington Declaration, https://gbdeclaration.org (last visited Oct. 24, 2022); Jonas Herby, Lars Jonung & Steve H. Hanke, A Literature Review and Meta-Analysis of the Effects of Lockdowns on Covid-19 Mortality, 200 Studs. in Applied Econs. 1 (2022); Alex Berenson, Unreported Truths about Covid-19 and Lockdowns (2020).

Wow.

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The Great Barrington Declaration was a letter penned by a trio of scientists proposing a fringe theory of controlling COVID that wouldn’t involve general lockdowns. The rest of the medical and scientific community considered their hypothesis and, when they finished laughing, noted that it was “unethical and simply not possible.” The Herby et al. piece wasn’t peer reviewed and was widely panned for simply ignoring most of the more rigorous studies because those would undermine the narrative thrust. And after exhausting these two dubious sources, the judge cites Alex Berenson, a former New York Times reporter turned Substack loony who got booted from social media at one point for spreading misleading health claims as one of the wrongest people covering COVID, repeatedly circulating debunked claims about the “dangers” of the vaccine.

Allow the sheer insanity of this footnote to wash over you.

Consider how an opinion comes together. Judge Jones sat down and thought, “we need to support the claim that the lockdowns were a bad idea” and then presumably sent a clerk out to find anything to back up this ludicrous brain fart.  And when Alex Fricking Berenson made the top three of sources, I doubt she saw “disgraced former NY Times reporter” and thought “Bingo!” More likely than not, she sent that clerk back to the drawing board to find something better and when they STILL couldn’t find a credible source for this, Judge Jones’s response was to go ahead and hit publish.

Absolutely bonkers.

Meanwhile, James Ho took a break from his Yale Law cancel culture publicity stunt to muse about the unenumerated rights:

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The Supreme Court has recognized a number of fundamental rights that do not appear in the text of the Constitution. But the right to earn a living is not one of them—despite its deep roots in our Nation’s history and tradition. Governing precedent thus requires us to rule against the countless small businesses, like Plaintiff here, crippled by shutdown mandates imposed by public officials in response to the COVID-19 pandemic. Cases like this nevertheless raise the question: If we’re going to recognize various unenumerated rights as fundamental, why not the right to earn a living?

It seems like he’s taking a swipe at abortion to justify making up new laws to help COVID denialism. Except the Supreme Court went ahead and struck down abortion already saying that, in fact, “we are NOT going to recognize various unenumerated rights as fundamental.”

The First Amendment guarantees the freedom of speech and religion. But the meaningful exercise of those freedoms often requires the expenditure of resources. The Fourth Amendment secures the people in their houses, papers, and effects, and the Fifth Amendment protects property from taking without just compensation. But it’s virtually impossible for most citizens to obtain property without an income.

Oh look, he’s invented a penumbra!

So, Ho’s taking this slam dunk of an affirmation as an excuse for an awkward announcement that a future Justice Ho would see “textualism” as malleable to whatever happens to appease the GOP zeitgeist.

And in this case, that zeitgeist is all about revisionist takes on COVID. The virus caused a lot of economic suffering. But when the lockdowns were lifted, business didn’t come back in force because most people were actually staying home to avoid COVID not because of a government policy. But it’s easier to blame “the government” for your woes than a pathogen, so here we are.[1]

And once you’ve laid the blame on the government, you can build a whole wingnut superstructure around it where COVID was always overblown, that lockdowns were useless, and, in the most extreme flavor of this theory, that the vaccine is all a lie.

Frighteningly, life-tenured judges seem willing to root around among this nuttery to find “support” for their opinions.


[1] As an aside, I place a little blame for this narrative on insurers who were big proponents of lifting lockdown policies so they had some policies out there that counted government action as triggering business interruption coverage.

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.