Supreme Court ruling will encourage holdouts to move to Florida and Texas?

“The Supreme Court Has Made a Grave Mistake on Guns” (NYT, from November 2021 but updated to reflect the recent ruling):

The Supreme Court will soon decide whether Americans have a constitutional right to carry loaded concealed weapons in public and in public places, wherever and whenever they believe they might need their guns for self-defense. Practically, that could mean everywhere and at all times.

The announcement of such an absolute and unfettered right would be shocking and disquieting to most Americans, not just to Americans in the many states where the people, through their elected legislatures, have for centuries restricted the carrying of handguns in public. It would also be concerning to many Americans who support gun rights. They, too, would understandably be unsettled and frightened by the idea that everywhere they went, their fellow citizens might be carrying loaded guns.

Suppose that someone had been considering moving from shutdown-loving NY, CA, or MA to a state with open schools, e.g., FL or TX. He/she/ze/they might formerly had said “I will stay in California dodging the unhoused, the pit bulls, the unhoused with pit bulls, the pit bull poop on the sidewalk, etc., and paying 13 percent state income tax (while receiving no public schools for my kids), because I am afraid of being in a place where lots of ordinary citizens have guns.” But if the Supreme Court ruling is as impactful as the media hysteria suggests, the gun-free paradises of CA and NY will no longer be gun-free.

Or will this trend be counterbalanced by a Supreme Court ruling on abortion? Already I have heard of a computer science professor objecting to a conference being hosted in Texas on the grounds that if a pregnant person attending the conference needs an emergency abortion, he/she/ze/they wouldn’t be able to get abortion care (the current Texas law actually allows abortions in the event of medical emergencies, according to Wikipedia).

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ACLU gives us a new definition of chutzpah

The non-profit organization that actually wrote the op-ed that got Amber Heard in legal difficulties now wants to profit from the trial after which Ms. Heard was ordered to pay more than $10 million in damages for the defamatory content that the non-profit org authored. From Newsweek:

On June 1, Depp’s lawyers filed a motion with New York state’s Supreme Court expressing opposition to a request made by the ACLU. “Respondents’ request for in excess of $86,000 in “expenses” associated with their Court ordered document production is not only exorbitant and unreasonable, but unsupported by New York law,” the lawyers wrote.

The motion came shortly after the ACLU requested that Depp pay the organization over $86,000 for legal costs during the trial, which involved Depp’s lawsuit and Heard’s countersuit. According to court documents obtained by KFMB-TV in San Diego, the ACLU is demanding that Depp pay $86,256 after several ACLU witnesses testified in the trial, as well as reimbursement for documents the ACLU provided following subpoenas by Depp’s legal team.

If we combine the above with “The ACLU Says It Wrote Amber Heard’s Domestic Violence Op-Ed and Timed It to Her Film Release” (Jezebel) we get a new definition of chutzpah.

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Who paid for the consequences of the ACLU-authored, Amber Heard-signed op-ed? You did.

From the New York Post:

Multiple sources said the “Aquaman” star had to switch legal representation and is relying on her homeowner’s insurance policy to cover the cost of her current attorneys in the case.

The bill for Heard’s attorney has mostly been footed by The Travelers Companies under terms of the actress’s insurance policy, sources said.

A vice president of the insurance firm, Pamela Johnson, was spotted in the Fairfax, Virginia, court with Heard multiple times throughout her trial. Neither Johnson nor Travelers returned calls from The Post.

When your next homeowner’s insurance bill arrives, remember that part of the increase will be to cover the loss occasioned by the op-ed that the ACLU wrote.

(This post assumes that Amber Heard will never pay the judgment against her and that the legal bills, as is typical for American litigation, were in the same ballpark as the amount at issue, i.e., $10 million per side.)

Here’s a question: will Travelers sue the ACLU to get its money back? The words that the jury found to be defamatory were actually authored by the ACLU, not Amber Heard. (As noted in Don’t let the ACLU write your op-eds and other lessons from the Amber Heard libel trial, the ACLU has at least $750 million with which to reimburse Travelers.)

“Anatomy of a Hit Piece” by Asra Q. Nomani (former Wall Street Journal journalist) lays out a timeline and contains some email excerpts:

From the ACLU:

“I’d like your and Amber’s thoughts on doing an op-ed in which she discusses the ways in which survivors of gender-based violence have been made less safe under the Trump administration, and how people can take action.” .. “If she feels comfortable, she can interweave her personal story, saying how painful it is, as a GBV survivor to witness these setbacks.”

The op-ed that the jury found libelous was approved by all of the best legal minds of the ACLU, it seems, including the ACLU national legal director, David Cole. And, as it happens, the version that was published was actually toned down from the ACLU’s first draft.

If you want to know why your auto insurance rates are going up, see “Geico must pay $5.2 million to woman who got HPV from sex in man’s insured car, court rules” (NBC):

Geico must pay a Missouri woman $5.2 million after she caught HPV from unprotected sex with her then-boyfriend in his insured automobile, a state appellate court ruled.

The woman — identified in court papers only as “M.O.” — said that she “engaged in unprotected sexual activities in Insured’s vehicle” in November and December 2017 and that he “negligently caused or contributed to” her catching the human papillomavirus (HPV), a common sexually transmitted infection, court papers said.

I don’t understand how the above dispute could be sorted out by an arbitrator, court, or even Ketanji’s panel of biologists seeking to define “woman.” The only way to determine that a disease was transmitted in the insured vehicle would be to establish that the woman who suffered $5.2 million in damages (nearly as much as if she’d been killed) never had sex with anyone else anywhere else. The vehicle’s DNA is not going to be embedded in the HPV that is now living inside this woman. Science says “HPV is so common that nearly all sexually active men and women get the virus at some point in their lives” (CDC), which means that the typical person who has had sex has suffered $5.2 million in losses even if he/she/ze/they did not get sued by a child support profiteer.

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Don’t let the ACLU write your op-eds and other lessons from the Amber Heard libel trial

“Legal victory for Johnny Depp after he and Amber Heard found liable for defamation” (CNN, today):

Depp sued Heard, his ex-wife, for defamation over a 2018 op-ed she wrote for The Washington Post in which she described herself as a “public figure representing domestic abuse.” Though Depp was not named in the article, he claims it cost him lucrative acting roles.

The jury awarded Depp $10 million in compensatory damages and $5 million dollars in punitive damages.

It seems that the CNN reporters did not do a lot of research. In fact, Amber Heard did not write the op-ed that proved expensive. “The ACLU Says It Wrote Amber Heard’s Domestic Violence Op-Ed and Timed It to Her Film Release” (Jezebel, April 28):

ACLU staffers actually ghost-wrote The Washington Post op-ed at the center of the trial, in which Heard claimed to be a survivor of domestic violence, and they pitched on her behalf, timed to the release of Heard’s then-upcoming film, Aquaman.

Lesson 1 is therefore “Don’t let the ACLU write your op-eds”? (Lesson 1a is “Don’t believe CNN”? They don’t even mention the ACLU, whose role was apparently central.)

What other lessons can we take away from this tawdry spectacle? Also from Jezebel:

Today, on Day 11 of the Johnny Depp and Amber Heard defamation trial, the American Civil Liberties Union revealed in damning testimony that Amber Heard has given just $1.3 million to the organization after promising in 2016 to give $3.5 million of her divorce settlement to the organization—and her ex Elon Musk donated nearly half of that money ($500,000, to be exact).

Could Lesson 2 be “Don’t rely on the promises of a family court plaintiff”?

Separately, why is the ACLU involved in domestic violence? Here’s a list of civil liberties:

freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity.

Maybe it is the “right to security”? But the typical domestic violence plaintiff (as distinct from domestic violence victim), like Amber Heard, is seeking cash, not security.

Also, is “right to life” a civil liberty? That sounds like “pro-life” and the ACLU is on the opposite side (see the abortion section of ACLU.org, which we learn that “the burden [of abortion restrictions] falls hardest on … LGBTQ+ people” (maybe Ketanji’s panel of biologists can explain that!)). How about “right to bodily integrity”? Is the ACLU opposed to forcing experimental injections on people? Far from it! “Civil Liberties and Vaccine Mandates: Here’s Our Take”:

Far from compromising civil liberties, vaccine mandates actually further them.

Circling back to Amber Heard, a domestic violence victim turned philanthropist, could the ACLU pay for the mess that they got her into? Their 2021 annual report lists assets of $748 million.

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City of Boston spent taxpayer funds on the legal defense of a policy that 9 out of 9 Supreme Court justices found unconstitutional

Back in January: City of Boston happy to fly rainbow and Islamic flags, but not a Christian group’s flag

Today in the NYT… “Supreme Court Rules Against Boston in Case on Christian Flag”:

The Supreme Court unanimously ruled on Monday that the city of Boston had violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall.

One of the three flagpoles in front of the building, which ordinarily flies the flag of Boston, is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests for the third flag.

It rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The group’s application said it sought to raise a “Christian flag” for one hour at an event that would include “short speeches by some local clergy focusing on Boston’s history.” The flag bore the Latin cross.

The Appeals court decision says that the lawsuit was originally filed in 2018. Thus, to avoid the horror of a Christian-themed flag blocking a billboard for one of the city’s “essential” marijuana dispensaries, the City of Boston paid lawyers for years to defend a policy that not even a single Supreme Court justice found constitutional.

The Appeals court document is also interesting for the list of organizations who hate seeing a Christian flag so much that they’re happy to toss out the U.S. Constitution. Examples of folks who filed amicus briefs in support of the city’s unconstitutional behavior:

  • Anti-Defamation League
  • Central Conference of American Rabbis
  • Hindu American Foundation
  • Maine Conference, United Church of Christ (they also hate Jews in Israel)
  • Men of Reform Judaism
  • National Council of Jewish Women
  • Christ; People for the American Way Foundation (it is not “the American Way” to follow the American Constitution?)
  • Reconstructionist Rabbinical Association
  • The Sikh Coalition
  • Southern New England Conference, United Church of Christ (again with the Israel-haters; I’m not sure that this name is accurate because I never heard anyone in New England who attended a UCC church mention either “Jesus” or “Christ”)
  • Union for Reform Judaism
  • Women of Reform Judaism

Not strictly related, but why do we Jews have so many different organizations? And why isn’t there a Reform Judaism-related group for those who do identify neither as “Men” nor “Women”? Also, what happens when a member of Men of Reform Judaism becomes a “woman” (as the term is defined by Ketanji’s panel of biologists)? Does she have to switch to the “Women of Reform Judaism” group?

The Person of Color (identified as such by the media) who is the current Boston mayor gets into the spirit of Islam today:

See also “Boston City Council approves protest restrictions proposed by Mayor Wu” (Boston Globe, March 30, 2022) for how Mx. Wu has enhanced freedom of speech.

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Joe Biden asks to speak to Judge Kathryn Kimball Mizelle’s manager

“Biden administration to appeal ruling striking down transit mask mandate” (Washington Post, today):

The Biden administration will appeal a federal judge’s decision that struck down the mask mandate on public transportation, officials announced Wednesday.

The Justice Department filed notice of its plans to appeal after U.S. District Judge Kathryn Kimball Mizelle of Florida on Monday concluded that the mandate exceeded the statutory authority of the Centers for Disease Control and Prevention. The ruling blindsided the White House and sparked days of debate within the administration about how to proceed.

In other words, the muscular Vanquisher of Corn Pop has asked to speak to the young judge’s manager!

Separately, as long as we’re talking about COVID Karens, I still can’t figure out why people who want to wear masks in public are in public to begin with. They’re afraid of COVID-19 so they put on a cloth mask or a non-fitted N95 mask after leaving the house. But if they’re afraid of COVID-19, why did they leave their houses in the first place? Karen visits a Florida theme park is an extreme example of this conundrum.

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Forced masking: the 34-year-old judge versus the 79-year-old president

In a perfect illustration of the intergenerational conflict exposed by COVID-19 and with perfect timing for Passover (a holiday all about freedom), a 34-year-old federal judge struck down the 79-year-old’s order forcing healthy young (non-elite) people to wear masks on buses, subways, and commercial airliners. On one side, we have Dr. Biden’s husband at an age where COVID-19 is often serious and sometimes fatal. He’s presumably hoping to make it to 100 so that he can attend the Metropolitan Museum’s opening of a permanent wing devoted to the work of Hunter Biden (today: “face coverings required for all visitors age 2 and older; in 2043 maybe it will be “face coverings required except for visitors under age 2”?). On the other side, Judge Kathryn Kimball Mizelle, a 34-year-old with no obvious COVID-19 risks (photo below from a Tampa Bay Bar Association interview) who can rely on her immune system to co-evolve with SARS-CoV-2.

Most young Americans meekly accepted the loss of their liberty (and, in many cases, their education) that was, at least in theory, supposed to help rich old people get richer and older. But not this judge!

As you might expect, the ruling was based on more technical grounds, as explained in “CDC mask mandate for travelers struck down by federal judge” (CNN):

A federal judge in Florida struck down on Monday the Biden administration’s mask mandate for airplanes and other public transport methods.

US District Judge Kathryn Kimball Mizelle said the mandate was unlawful because it exceeded the statutory authority of the US Centers for Disease Control and Prevention and because its implementation violated administrative law.

A Biden administration official familiar with the White House’s decision previously told CNN the goal of the extension was to gather more information and understanding of the BA.2 variant of the coronavirus. Covid-19 cases in the US are on the rise, leading universities and the City of Philadelphia to reimplement indoor mask mandates.

The first part of the judge’s 59-page ruling turned on the meaning of the word “sanitation,” as it functions in the 1944 statute that gives the federal government the authority — in its efforts to combat communicable diseases — to issue regulations concerning “sanitation.”

Mizelle concluded that that the use of the word in the statute was limited to “measures that clean something.”

“Wearing a mask cleans nothing,” she wrote. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”

Mizelle suggested that the government’s implementation of the mandate — in which non-complying travelers are “forcibly removed from their airplane seats, denied board at the bus steps, and turned away at the train station doors” — was akin to “detention and quarantine,” which are not contemplated in the section of the law in question, she said.

“As a result, the Mask Mandate is best understood not as sanitation, but as an exercise of the CDC’s power to conditionally release individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse),” she wrote. “But the power to conditionally release and detain is ordinarily limited to individuals entering the United States from a foreign country.”

If her order sticks, maybe young people will say “Thank Mizelle” every time they get on public transit (which the rich old people who created the mask orders never used to begin with).

Speaking of Tampa, the children’s museum there in a photo from December 2021:

(One of the things that I am liking about Florida is the priority given to children. Events that would require paid tickets for each child up in Maskachusetts are generally free to children here. At least half of the time that I expect to pay for our kids I find out that a paid adult admission enables an unlimited numbers of kids to come in as well. A family of modest means, therefore, can afford a wide range of activities that would be out of reach for a family in the Northeast. Disney, of course, is an exception and is financially ruinous for anyone with kids.)

Reaction from a Facebook friend (old white guy): “If there was a hell, it would hold a special place for U.S. District Judge Kathryn Kimball Mizelle”

From the NYT readers:

(Kathleen in NY) It’s a shame that not one major airline was brave enough to keep the mask policy in place—offering passengers a choice to fly with other safety-minded people. Missed business opportunity too. It’s a tragedy that airlines caved to the vocal minority, rather than the more compliant majority—placing more importance on individual liberty (aka selfishness) than to the common good.

(Andy in Chicago) Even if masks were about to become optional anyway, this judge’s decision sets a dangerous right-wing precedent for future Covid waves and other epidemics.

(josh in NY): The judge who made this decision was a political appointee of Donald Trump, and utilized no scientific based reasoning in the decision to remove masks from travel. I think this will only harm the nation further and while no one likes to wear them, they are especially useful in tightly packed places like planes, trains, and buses. I hope the administration appeals this blatantly political opinion.

(Jason in NY): I had a trip planned to California next week. As a result of this politically motivated and dangerous move to end masks on flights, I have cancelled my trip.

(Martha in Tennessee) Woo hoo! Now the US needs to drop the negative test requirement for citizens to get back into the country. Those of you who insist on living in fear are just going to have to stay home.

(David in California, replying to Martha) I’ll stay home, thanks for your consideration. And I’m not the only one. Taking action that drives customers away isn’t necessarily a good business decision.

(John in San Jose) I read the decision of Judge Mizelle. It is shockingly bad and is based on narrow views of select words while ignoring not only other sections, but even common sense. … Judge Mizelle claims that the mask mandate exceeds its authority because it does not fit into the suggested list of remedies listed in the law, but she also chose to ignore the closing words of 42 U.S. Code 264 which state “and other measures, as in his judgment may be necessary.” It is sad to realize that the hard work of thousands of well-trained people can be rendered moot by one judge with no knowledge of diseases and a partisan agenda.

Related:

  • COVID-safe restaurant chain idea (perfect for the NYT commenters above who want to continue living under the rules that prevailed in New York City, Washington, D.C., and San Francisco circa January 2022)
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City of Boston happy to fly rainbow and Islamic flags, but not a Christian group’s flag

Today at the Supreme Court: Shurtleff v. Boston. Officials of the Cradle of Liberty were happy to fly the rainbow (Pride) flag and the Islamic-themed flag of Turkey, but a Christian-themed flag was unacceptable (284 applications were approved over a 12-year period and this single group was denied).

“Several Juneteenth Events Planned As Massachusetts Observes Official Holiday For First Time” (CBS) and “Boston Raises Pride Flag On City Hall Plaza” (CBS) have videos of example events.

The Christian group’s petition gives the history. According to the city, everyone should feel included (sometimes the best way for a Christian to be included is for Christians to be excluded?):

In my view, the petition incorrectly characterizes Rainbow Flagism as a “cause” rather than as a religion.

Although the city itself says that this is supposed to be a “public forum”, which you might think would require allowing the Christian group to participate, so far the appeals courts have all sided with the city’s policy of excluding this one group.

Given that Boston shut down its schools for more than a year while keeping marijuana stores open, and that marijuana retailers are such big advertisers in the city (see above) and on Mass Pike billboards, I’m disappointed that the petition cannot cite an example of a flag devoted to healing cannabis (Ivermectin for Democrats, as one reader here commented). I think it would be fun to apply to fly the “Rainbow Marijuana USA Stars Flag Gay Pride Lesbian LGBT” flag:

Readers: Where do we think the Supreme Court will come down on this case?

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Trying to make sense of the Supreme Court rulings on the vaccine orders

We tried to predict what the Supreme Court would do with President Biden’s vaccine mandates on health care workers and on employees of larger companies (see Supreme Court hears arguments on forced vaccination in two parallel universes).

In the ruling on the health care industry, dependent on the twin rivers of Medicare and Medicaid cash, the Supreme Court said the following:

In many facilities, 35% or more of staff remain unvaccinated, … and those staff, the Secretary explained, pose a serious threat to the health and safety of patients. That determination was based on data showing that the COVID–19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated.

the Secretary also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking medically necessary care,” creating a further “ris[k] to patient health and safety.”

(The last one is interesting. Suppose that we find that patients are uncomfortable with white cisgender heterosexual physicians, whom they perceive as intellectually inferior due to being able to slide into medical school via privilege. Can the government order that the health care industry hire only the BIPOC and 2SLGBTQQIA+? Otherwise patients might forgo seeking medically necessary care.)

The core of the above-cited section is that a lawyer, with no technical or scientific training, has decided to disagree with a Stanford Medical School professor (see “Benefit of COVID-19 vaccination accounting for potential risk compensation” (Nature)) who found that the vaccinated might actually be more likely to get infected and spread disease if you assume (a) an imperfect vaccine, and (b) humans take more risks once they’ve been told that they’re invulnerable due to vaccination. (see also Perfect illustration of risk compensation rendering COVID-19 vaccines ineffective and Why doesn’t the raging plague in Maskachusetts cause doubt among the true believers in Faucism?)

So the Supreme Court accepts as scientific fact that vaccination and casting out the unvaccinated are critical to #StopTheSpread. This, plus potential patient discomfort with heretical providers, led to the Court approving Biden’s order.

In the ruling on generic private employers, however, COVID-19 seems to be a different, much milder, disease. Certainly COVID-19 does not present a “grave danger” to humans nor is SARS-CoV-2 “toxic or physically harmful.”

[workplace-related orders from the Pharaoh] are permissible, however, only in the narrowest of circumstances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.”

So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure,

The last paragraph says that there is an inevitable risk of COVID-19 exposure based on inhabiting the biosphere for workers, but, based on the previous ruling, this is apparently untrue for patients visiting Medicare- and Medicaid-funded health care facilities.

Let’s see who among us got this right…

  • I was at 50% (correct about health care order being approved, a 95 percent prediction and incorrect on my “less confident” prediction that the workplace order would be approved)
  • Craig said “I’m predicting the court will find the federal vaccine mandate to be an overreach simply because the narrative is already shifting towards Omicron <= flu and we must learn to live with it (like you predicted). There is no federal mandate for flu vaccinations, although I believe some federal agencies like VA hospitals can require staff to have flu immunizations.” (he didn’t separate out the two issues before the Court, but I think we might have to give him 100% since he mentioned “federal agencies” (and any enterprise on the Medicare/Medicaid dole is essentially a federal agency)
  • Jack was at 50%: “My guess is the Court will rule against the Biden administration — seems that a substantial number of Americans are opposed to the vaccine mandate & therefore any mandate will be widely ignored. Affects the Court’s legitimacy to uphold law that will be ignored & will encourage civil disobedience. Also, as a matter of numbers, the statist justices are in the minority.”
  • JT was at 50%: “Predict struck down and that it’s a blessing for Biden. It’s obvious it doesn’t stop the spread so all a mandate could possibly do is create onerous bureaucracy people hate.”

Can these rulings be considered logically consistent? There are sicker/older people who go to hospitals than to work. But on the other hand, hospital staff are highly competent at using the masks that the government says stop COVID-19 transmission. Also, the ruling is based on the vaccines being highly effective and sicker/older people are generally vaccinated. And if they can catch COVID-19 nonetheless, they will eventually catch COVID-19 indirectly from people who get COVID-19 in the unsafe workplaces. Ivan pointed out that “Sotomayor claimed that the federal government has ‘a police power to protect workers'”. If we combine these two orders do we find that the federal government has a police power to protect those visiting health care facilities, but as soon as the visit is over the police power evaporates?

Color me confused! The Supreme Court accepts that vaccination leads to reduced COVID-19 infection and transmission, and that the peasantry believe this as well, and therefore the government can order doctors and nurses to be vaccinated. Yet the government cannot order this vital protection for workers outside of health care? And, though this issue wasn’t before the Court, it sounds as though, unless prohibited by state law (as in Florida!), a mayor can order the peasants within a city to be vaccinated if they want to leave their hovels (see Washington, D.C. vaccine papers and Photo ID checks start tomorrow for example).

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Is it legitimate for the Supreme Court to use numbers to rule on forced vaccinations?

Based on what Justices said during last week’s hearing regarding the constitutionality of President Biden’s forced vaccination orders, the Supreme Court seemed to be prepared to rule based on numbers.

There are some questions about whether these numbers are correct. See “Sotomayor’s false claim that ‘over 100,000’ children are in ‘serious condition’ with covid” (Washington Post), for example:

But then Sotomayor went off the rails: “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”

That’s wildly incorrect, assuming she is referring to hospitalizations, given the reference to ventilators. According to HHS data, as of Jan. 8 there are about 5,000 children hospitalized in a pediatric bed, either with suspected covid or a confirmed laboratory test. This figure includes patients in observation beds. So Sotomayor’s number is at least 20 times higher than reality, even before you determine how many are in “serious condition.”

Moreover, according to the Centers for Disease Control and Prevention, there have been less than 100,000 — 82,843 to be exact — hospital admissions of children confirmed with covid since Aug. 1, 2020.

(We will not address remarks made by Justice Neil M. Gorsuch, which some readers also thought were wrong. The official court transcript suggested he had made an inflated statement about the annual flu: “Flu kills — I believe — hundreds of thousands of people every year.” The flu kills between 12,000 and 52,000 people in the United States a year, but the audio of the argument shows Gorsuch actually said that “flu kills, I believe, hundreds, thousands of people every year.” So the transcript is incorrect.)

Let’s assume for the sake of this blog post that perfect numbers are available for every statistic and that all of the Justices are able to comprehend and remember these numbers. A reader sent me an interesting email:

What is the definition of small? And who decides? What can they force you to do in the future with this precedent?

What if we had a pandemic with a 5% death rate and a “vaccine” with a 4% death rate?

If the Constitution limits what the federal government can do, it shouldn’t be necessary to resort to a statistical analysis to determine whether the government can constitutionally force healthy people to take a medicine that they don’t want.

I don’t think this is as simply as making an analogy to vaccinations required for children to attend taxpayer-funded schools. As far as I am aware, all of those vaccinations were and are intended to protect those being vaccinated whereas the argument for forcing a vaccine on a healthy 20-year-old is to protect others (since Science proves that the vaccine will prevent infection and transmission). Also, those vaccines had been through a traditional (non-accelerated) testing and approval process. (I would point out that those vaccines are more than 37% effective, but that gets us back to turning law into a numbers game.)

Readers: Will you be sorry if the Supreme Court refers to numbers and statistical studies when it finally rules on this issue of how much power the federal government has?

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