The clueless Supreme Court and the progressive pundits who don’t care about the rule of law

In a shocking display, the progressive justices on the Supreme Court have no idea what vaccines actually do, how many children are affected, and current hospitalizations.  Even worse, they and progressive pundits are even less interested in the rule of law vital to a functioning democracy.

Last week, the Supreme Court heard oral arguments on President Joe Biden’s vaccine mandates.  At issue were two different types of mandates ordered by his administration, one targeting healthcare organizations that receive funding from Medicare and Medicaid, basically every healthcare provider in the country, and another that compels companies with more than 100 employees to verify vaccination status, projected to affect some 80 million Americans.  The Supreme Court is expected to issue a final ruling on both matters shortly, but in the meantime two things are unmistakable. First, the more progressive justices, Sonia Sotomayor, Elena Kagan, and Stephen Breyer, are so grossly misinformed about coronavirus that any reasoned ruling is absolutely impossible, demolishing the notion that donning a black robe on the highest court in the land imparts any essential wisdom or even seriousness while grappling with major issues affecting the country.  Second, progressive pundits and legal experts no longer care about the Constitutional Order or principles of limited government that used to be considered foundational to the functioning of American democracy.  In their minds, the government can do whatever it pleases should it feel the need arise.

The progressive justices themselves were almost comical in their near hysterical questions about the current state of the pandemic, blending gross exaggeration with outright misinformation.  It might’ve been funny as a Saturday Night Live skit, except each of these justices wield enormous power to shape each and every American life, and they should certainly know better.  Instead, Justice Sotomayor made a series of blatantly false and ridiculously exaggerated claims, literally piling on the panic without any facts to back it up.  She began the misinformation portion of the hearings by insisting “the best way” to prevent the spread of COVID-19 is “for people to get vaccinated.”  The only problem is:  Our own CDC has been saying for months that vaccines only prevent serious infection and do not stop the spread.  CDC Director, Dr. Rochelle Walensky explained months ago, “They continue to work well for Delta, with regard to severe illness and death – they prevent it. But what they can’t do anymore is prevent transmission.”

Justice Sotomayor wasn’t finished either, insisting the virus was “bloodborne” and humans are the equivalent of machines.  Then, she switched from gross misinformation to remarkable exaggeration, claiming, “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 serious condition, many on ventilators.”  The actual number of children hospitalized with coronavirus is 3,342, more than half of which were admitted for another reason and then tested positive for the virus.  As the good Dr. Anthony Fauci himself explained, “If you look at the children [who] are hospitalized, many of them are hospitalized with COVID as opposed to because of COVID.  What we mean by that is that if a child goes to the hospital, they automatically get tested for COVID, and they get counted as a COVID-hospitalized individual, when in fact, they may go in for a broken leg or appendicitis or something like that.”  The root cause of Justice Sotomayor’s confusion may be that she believes the latest Omicron strain is as dangerous as Delta, saying outright “Omicron is as deadly as Delta.”  While we are still accumulating data in that regard, it appears she is mistaken:  Reports from around the world, including from South Africa where the strain originated, all claim that Omicron is a far less serious disease that lodges itself in the upper respiratory system and doesn’t appear to attack the lungs as severely as previous strains.  

Nor was Justice Sotomayor alone in insisting the healthcare system is on the verge of collapse.  Justice Breyer also falsely claimed that “hospitals are full almost to the point of capacity.”  The actual percentage of hospital beds occupied with coronavirus patients across the United States?  About 16% according to WebMD, accounting for around 113,000 patients.  The total occupancy rate including COVID-19 and other conditions is 76%, meaning there are almost five times as many patients in the hospital for reasons other than coronavirus.  Justice Breyer followed up with yet another whopper, saying that 750 million people were infected with coronavirus the day before, twice the population of the entire United States.  He also implied that vaccines had the potential to drive cases down to zero, echoing his colleague’s falsehood that they prevent the spread of the disease rather than simply protect against more severe cases.  This is a belief shared by Justice Kagan as well, who said people “have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients. I mean, that seems like a pretty basic infection prevention measure.”  Together, it seems not a single one of the progressive justices knows anything about the basics of the virus, contradicting the CDC and public health experts on basic facts from how it spreads to the impact on the healthcare system.

Perhaps even worse, neither they nor progressive pundits appear to have any understanding of our Constitutional Order or any interest in preserving it either.  CNN’s disgraced legal analyst Jeffrey Toobin takes the lead in this regard, writing an article expressing no shortage of surprise that the Supreme Court might have some concerns regarding a never before seen use of government power without any kind of legislation authorizing it.  He began by claiming, “Irony is dead at the US Supreme Court. Unfortunately for the President (and for people who would rather not get Covid-19), it looked like a pair of Biden’s signature initiatives to fight the pandemic may be dead, too.”  Apparently, Mr. Toobin thinks there is some irony to be had here because two of the attorneys arguing against the mandates had to appear remotely after at least one tested positive for coronavirus, as if they were the only ones in the country and there was evidence the mandates would’ve prevented it.  Mr. Toobin is CNN’s chief legal analyst, surely he should know that the Supreme Court doesn’t deal in irony or care whether a single person has coronavirus on any given day.  They are charged with protecting the Constitution and our rights.  You know, silly stuff like the rule of law, a concept that doesn’t seem to concern Mr. Toobin in the least when “analyzing” this important case.  Instead, he believes that “The three liberals on the Court — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — seemed like they were arguing on a different planet from the one where their colleagues resided.”

He wrote this while making no mention at all about their flagrant falsehoods, before noting that “On planet liberal, Covid-19 was still a major problem. People were still dying, and the Biden administration was trying to do something about it.”  There you have it, progressive legal reasoning in a nutshell:  Biden was trying to do something about it, therefore he can do whatever he wants, the Constitutionality of it be damned.  Of course, our system of government doesn’t work that way, or at least not yet.  We have a little thing called the separation of powers, where each branch of government has its own abilities, rights, and prerogatives, and limitations on those powers where there are certain things the government simply cannot do regardless of the circumstances.  The things the government can and cannot do are not predicated on prevailing conditions or political whims.  They are fixed unless new legislation is passed and signed into law at a minimum, or a new Amendment to the Constitution is ratified.  President Biden is the head of the executive branch of the government, charged with implementing and enforcing laws, not writing them.  There is no current law anywhere that authorizes the federal government to mandate vaccines in any circumstance, regardless of the emergency, nor has there ever been such a thing.  As the legislative branch has not acted to pass such a law, it seems overwhelmingly obvious that Biden has exceeded his authority by creating one himself.

After all, if you can magically find this kind of power in a 1972 workplace safety law, what power can the government not find when it wants?  Progressives often point to overpopulation as a concern, were that to become a public health emergency, could the government mandate birth control and potentially abortions?  Of course not.  In the United States there are limits to government power and a process to revise those limits as needed.  Mr. Toobin dismisses centuries of precedent with essentially “whatever.”  “Whatever the reasons that ultimately justify the rulings, the most likely outcome for the country seemed clear: fewer required vaccinations and testing, likely leading to greater sickness and even more death.”  Incredibly, this opinion seems to be shared with at least one Justice currently on the Supreme Court.  Justice Sotomayor actually said, “I’m not sure I understand the distinction why the states would have the power, but the federal government wouldn’t.”  Surely, we should expect a Justice on the Supreme Court to be aware of the Ninth and Tenth Amendments.  Their text is pretty clear, after all:  “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

If I may be so bold, allow me to educate Justice Sotomayor on this matter:  As her own Supreme Court decided in 1905, the states have this ability to mandate vaccines under their police powers, powers which the federal government doesn’t have.  Conceivably, the federal government could delegate these powers to itself if Congress were to pass legislation, but they have not.  Instead, President Biden wants to use workplace safety powers, which have never been used this way and were never intended this way.  Even then, it is unclear whether the federal government could wield this power short of an actual Amendment:  The Supreme Court has upheld the right to privacy for generations.  If it applies to abortion, there’s certainly an argument to be made that it applies to other medical procedures, but far be it from to educate a justice on the Supreme Court.  I’m just a dude with a blog after all.