Sotomayor Fact-Checked: Justice Gets Four Pinocchios for ‘Wildly Incorrect’ Covid Claim

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During oral arguments on the Biden administration’s vaccine mandate for large private employers on Friday, Supreme Court Justice Sonia Sotomayor exaggerated the number of children hospitalized with Covid by tens of thousands.

She earned a four Pinocchio rating from the Washington Post fact checker, the paper’s worst rating.

“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,” she said.

Debunking the statement, the Post cited HHS data that there are about 5,000 children hospitalized in a pediatric bed as of January 8. These patients include kids with suspected Covid or a confirmed positive test result, and well as those in observation beds. Calling her claim “wildly incorrect,” the publication wrote that “Sotomayor’s number is at least 20 times higher than reality.”

Since August 1, 2020, a few months after the pandemic erupted, there have been 82,843 children hospitalized with Covid, according to the CDC.

Despite abundant scientific evidence that the latest variant of the virus causes mild symptoms, on average, in those who contract it, the justice insisted that Omicron is just as lethal as the Delta and original strains. This is how she interpreted a brief filed by the American Commitment Foundation, raised by Ohio solicitor general Ben Flowers during the hearing, which argued that the vaccine could be less effective against Omicron.

Using the logic that Omicron is equally deadly as its predecessors, Sotomayor added that “saying it’s a different variant just underscores the fact” that a sweeping mandate for American workers is warranted.

“Actually, as we have shown, that’s not what the brief said,” the Post writes. The brief indicates that previous infection may provide greater immunity than vaccination against Omicron, undermining the case for a federal vaccine mandate, the Post suggested.

Sotomayor made another troubling analogy, which erroneously assumed Covid to be “blood-borne,” during opening arguments Friday that claimed unvaccinated workers are negative externalities to those around them.

“Why is the human being not like a machine if it’s spewing a virus, blood-borne viruses? Are you questioning Congress’s power or desire that OSHA do this? It already in 1991 told OSHA to issue regulations with respect to Hep C and B,” she said.

Sotomayor’s weak grasp of Covid statistics alarmed legal scholars, who accused her of peddling disinformation. Her vote is consequential on a bench of nine, even with a conservative majority, which is expected to decide in the coming days whether to temporarily suspend Biden’s mandate while it reviews more substantive questions of its constitutionality.

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