A wise axiom warns us not to deduce Supreme Court decisions based on the questions asked by its justices during oral arguments. Perhaps, however, we can deduce their relative wisdom and grasp of reality from the questions they pose. In today’s debate over the legality of the Biden administration’s vaccine mandates imposed by OSHA, a few of the justices appear to have little grasp of the current facts of the pandemic.

Justice Sonia Sotomayor led the way on misinformation. Sotomayor was hardly alone in causing jaws to drop, but she was the clear leader. The transcript isn’t yet available, but observers shared their amazement on Twitter. First, Sotomayor misses the rationale for a mask mandate entirely:

Sotomayor: "Why is a human not like a machine when it is spewing bloodborne (!) viruses?"

— Phil Kerpen (@kerpen) January 7, 2022

Ahem. COVID-19 is a respiratory illness. If it were a blood-borne disease, no one would need to wear a mask, and there would be little need for a vaccine mandate in workplaces. That’s rather basic to the question of whether OSHA’s vaccine/mask mandate serves a rational purpose for a legitimate state interest.

That, however, was only the start of the nonsense. Here are more of Sotomayor’s bon mots:

J. Sotomayor says Omicron is as deadly as Delta. #SCOTUS

— Shannon Bream (@ShannonBream) January 7, 2022

Laughably false, of course, and as well documented in South Africa and now the UK as well.

Here is Justice Sotomayor saying that "hospitals are almost all full capacity" and there are "over 100,000 children" hospitalized with covid "many on ventilators.

None of those things are true. Not even close. pic.twitter.com/MqWEL2UvJg

— Greg Price (@greg_price11) January 7, 2022

This is just absolutely astonishing. "100,000 children in serious condition," per Sotomayor. Where do these people obtain their misinformation? The current national pediatric COVID census per HHS is 3,342. Many/most incidental.

— Phil Kerpen (@kerpen) January 7, 2022

As it happens, we do have CDC data for this that’s relatively up to date. Currently, pediatric hospital admissions concurrent with a COVID-19 positive test — but not necessarily related to COVID — comes in at 1 in every 100,000 in population. The seven-day daily average of under-18s in hospital nationwide is 766 across the entire country:

We haven’t had 100,000 pediatric admissions even correlated to COVID-19 in this country total since the CDC began tracking such data in August 2020. There aren’t 100,000 children currently in “serious condition” anywhere in any data. Even Anthony Fauci warned last week that the hospitalization spike in pediatric admissions was relatively mild and almost entirely correlative, or in simpler terms, admissions with COVID-19 rather than admissions because of COVID-19. There is zero evidence thus far that Omicron presents any new enhanced risk to children over the earlier variants, which almost entirely didn’t impact pre-teens unless significant co-morbidities were present.

Sotomayor wasn’t the only Supreme Court justice with a comprehension issue. Breyer apparently confused admissions with capacity and assumed hospitals have run out of resources, but that’s not the case:

Breyer: "Hospitals are full almost to the point of the maximum."

These people know absolutely nothing. Zero. pic.twitter.com/F5z3Hzz6IR

— Phil Kerpen (@kerpen) January 7, 2022

Hospital capacity is getting more use and admissions correlated to COVID-19 have skyrocketed, but that’s not the same thing as overfilling hospitals. The admissions figures appear to have included a lot of correlated COVID diagnoses for hospitalizations that are treating unrelated conditions, just as it appears has happened with pediatric admissions. We would expect that to happen with a highly transmissible variant like Omicron, but that doesn’t mean that these admissions are on top of what we would normally have. It could, and likely does, just mean that more people who have to get admitted to the hospital for other reasons have also been exposed to Omicron. Phil Kerpen’s hospital census graph shows a slight uptick in used capacity, but it’s nowhere near the dramatic claim by Stephen Breyer.

Justice Elena Kagan also had trouble doing basic research:

Kagan: "We know the best way to prevent spread is for people to get vaccinated."

Kakistocracy.

There is literally zero evidence that these vaccines prevent Omicron infections.

— Phil Kerpen (@kerpen) January 7, 2022

In fact, the CDC makes it very clear in its conclusions about Omicron that the vaccinated do become vectors for community transmission. “CDC expects that anyone with Omicron infection can spread the virus to others,” they declare to anyone who bothers to look, “even if they are vaccinated or don’t have symptoms,” emphasis mine. The CDC likewise notes that vaccinated people who get a symptomatic Delta infection are contagious to others, and suspect that they are also contagious when asymptomatic too. So no, vaccinations do not stop community transmission of either of the variants circulating in the US, especially not Omicron, which is 95% of all detected cases now. And that matters in determining whether this intrusive policy rationally addresses the state interest claimed by the Biden administration and OSHA.

This demonstrates the folly of believing that judges and politicians are somehow exempt from misinformation and manipulation. In these three cases, it also demonstrates that even judges at the top of the food chain can be lazy, unengaged, and foolish … as if we didn’t have plenty of evidence already for that. The only questions left is whether the other six justices will rule on the law within a well-informed framework about the pandemic … and whether Twitter will boot Sotomayor for serving as a font of COVID-19 misinformation.

Note: Yes, I’m aware that Sotomayor isn’t on Twitter. It’s a rhetorical question.

Update, for the humor impaired who didn’t bother to read the note or the post: The Twitter reference is a joke aimed at the platform’s pretensions of moderating for “misinformation.” As I wrote in the beginning, I’m aware that Sotomayor isn’t on Twitter. Maybe a few other people should consider getting off that platform, too.