Of the six Republican activists posing as impartial guardians of the Constitution on the Supreme Court, none can match Associate Justice Neil Gorsuch for his arrogance and gaslighting. This is especially true when it comes to policy initiatives aimed at halting the spread of the COVID-19 plague that has claimed the lives of 860,000 Americans.

On January 7, the High Court heard oral argument in two cases involving the Biden administration’s COVID-19 vaccine mandates. The first case – National Federation of Independent Businesses v. Department of Labor – relates to an emergency order issued by the Occupational Safety and Health Administration (OSHA) that imposes a “vaccination or test” requirement on employees of large businesses. The second – Biden v. Missouri – relates to an order put in place by the Centers for Medicare and Medicaid Services (CMS), requiring vaccinations for healthcare personnel who work in facilities receiving Medicaid or Medicare funding.

Although it is sometimes difficult to predict the results from the tone and tenor of the oral arguments, the court seems on the verge of overturning the company’s mandate, but can, by a narrow margin and with some bets cautions and limitations, maintain health care guideline.

Either way, whether he is in the majority or as a dissenter in the minority, Gorsuch can be expected to write opinions that argue that OSHA and CMS have exceeded the scope of their authority. delegated in issuing warrants.

Such an opinion would be questionable on the law, since the statutes that created the two agencies provide for the emergency measures they have taken. But in all likelihood, Gorsuch won’t just cancel the warrants for technical reasons. Chances are he will go much further and claim that the dangers of COVID-19 have been overstated.

Don’t rely on me for predictions. Read the transcripts of the arguments and make your own predictions. Transcripts are available here and here.

An exchange in the NFIB between Gorsuch and US Solicitor General Elizabeth Prelogar is particularly illuminating. Gorsuch started the dialogue (see pages 120-122 of the transcript below) by noting that OSHA has never mandated polio or influenza vaccination for workers.

He then added, apparently with a condescending laughter and in a style reminiscent of the factless ramblings of the president who appointed him:

“I mean, people forget polio. It was pretty bad, you can call it a pandemic, you can call it endemic, I don’t know what you would call it, but it was a terrible blight on this country for many years.

“We have vaccines for that — that, but the federal government, through OSHA, as far as I know, you can correct me, doesn’t require every worker in the country to have such a vaccine. We have flu shots. The flu kills, I believe, hundreds, thousands of people every year. OSHA has never claimed to regulate on this basis.

How do we feel about this when we think about what is considered a major issue and what is not? »

Gorsuch’s chatter prompted a barrage of mockery on social media.

“Neil Gorsuch: pompous, arrogant, reckless, callous, ignorant. The Rand Paul of the Supreme Court,” tweeted Norm Ornstein, senior scholar at the American Enterprise Institute and editor of Atlantic magazine.

“STOP GETTING YOUR MEDICAL STATS FROM FOX NEWS,” blasted Elie Mystal, justice correspondent for The Nation, in another tweet.

Unbeknownst, apparently, to Gorsuch, who earned his law degree from Harvard and has a doctorate from Oxford, the United States has eradicated polio, in large part through a massive national vaccination program launched by the Eisenhower administration in the 1950s, long before OSHA. was established in 1971. Today, all 50 states and the District of Columbia require public school children to be vaccinated against polio before they enter kindergarten. Polio vaccines are not required for US workplaces.

Gorsuch also deviated from the facts by equating the dangers of influenza and COVID. According to the Centers for Disease Control and Prevention (CDC), the flu kills 12,000 to 52,000 people a year in the United States, far fewer than COVID-19.

As a place of business, the Supreme Court has taken strict precautions against COVID. All judges have been fully vaccinated and strengthened, and court protocols require lawyers to be tested for the virus. Two of the attorneys who participated in the warrant’s pleadings were forced to appear remotely in accordance with protocols.

Seven of the judges wore masks except when speaking. Gorsuch was the only outlier, appearing unmasked everywhere. Judge Sonia Sotomayor, who sits next to Gorsuch on the bench, chose to participate from her office.

Unfortunately, Gorsuch’s histrionics on the Biden mandates is by no means the first time he has blatantly enlightened the legal community and the general public about COVID-19. In two previous rulings, he falsely wrote that the governors of New York and California had imposed COVID mitigation measures on religious gatherings that “prioritize restaurants, marijuana dispensaries and casinos over churches, mosques and temple”.

Dogmatism and dishonesty of such magnitude are rare among Supreme Court justices. But even more ominous than Gorsuch’s quirks and personal opinions is that he and the other court Republicans embrace the longstanding conservative goal of rolling back the New Deal regulatory framework. As Steve Bannon, the recently reindicted ex-Trump adviser and far-right podcaster explained, the ultimate price is nothing less than the “deconstruction” of the administrative state.

Hostility to COVID-19 mitigation policies is only one facet of the Court’s overall record. In recent years, the court has handed down an impressive number of right-wing rulings on vital issues such as suffrage and gerrymandering, environmental protection, anti-union struggle, campaign finance and, more recently, abortion. With Gorsuch in the lead, this record will only become more dangerous and extreme.

Postscript: This article cites the court reporter’s corrected transcript of remarks made by Judge Gorsuch in the NFIB case on polio and influenza vaccines. In the edited version, Gorsuch claims that the flu kills “hundreds, thousands” of people every year.

In the original transcript, before the correction, Gorsuch is quoted as saying that the flu kills hundreds of thousands of people every year.

Following the correction, the right-wing media rushed to Gorsuch’s defense, claiming he had been misquoted and unfairly slandered in media coverage of the oral argument in the NFIB case.

I have three replies to this answer:

First, I listened to the audio recording of the argument and it is not at all clear that the original transcription was incorrect.

Second, the edited version makes Gorsuch appear even more ignorant than the first. If Gorsuch truly believes that the flu only kills hundreds or thousands, then by his own characterization the flu is not at all comparable to COVID-19 and does not require any emergency action on the part of the OSHA – which is exactly what Solicitor General Prelogar patiently explained to him during the argument.

In fact, as noted in the article, the flu kills between 12,000 and 51,000 people a year in the United States. It can be a very serious disease, but, with the exception of rare cases like the 1918-19 pandemic, it is orders of magnitude less lethal than COVID-19.

Third, the edited transcript does not alter Gorsuch’s blindly stupid remarks about polio. These remarks are as originally reported. The reason we don’t require polio shots for working people is because polio has been eradicated in this country and almost all Americans get a polio shot before they start kindergarten…long before they go to school. to enter the labor market.

One would expect a Supreme Court justice to know all of this. Unfortunately, that is the reality we live in with the current tribunal.

Bill Blum

BlumsLaw