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Supreme Court Corrects Transcript, Notes Gorsuch Didnít Make False Flu Claim

Zachary Stieber

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The Supreme Court has updated its official transcript of court proceedings that took place last week, clarifying that Justice Neil Gorsuch did not make a false claim about the flu.

The nation’s top court heard oral arguments on Friday for and against two Biden administration COVID-19 vaccine mandates, including one promulgated against every business with 100 or more workers by the Department of Labor’s Occupational Safety and Health Administration (OSHA).

Gorsuch, a Trump nominee, during questioning of Solicitor General Elizabeth Prelogar, said that polio “was a terrible scourge on this country for many years” but that the federal government has never mandated it for workers through OSHA.

“We have flu vaccines. The flu kills, I believe, hundreds of thousands of people every year. OSHA has never purported to regulate on that basis. What do we make of that when we’re thinking about what qualifies as a major question and what doesn’t?” Gorsuch was quoted as saying.

Critics noted that hundreds of thousands of people are not killed by the flu every year, but some people noted that Gorsuch had not appeared to say “of.”

The Supreme Court on Monday quietly updated the transcript (pdf), with Gorsuch being quoted now as saying, “The flu kills, I believe, hundreds, thousands of people every year.”

The court did not alert the public to the change and spokespersons have not responded to emailed questions regarding the sessions on Friday.

During the arguments, multiple judges promoted misinformation about COVID-19, including Justices Sonia Sotomayor and Stephen Breyer.

Sotomayor, an Obama nominee, falsely claimed that 100,000 children are seriously ill with COVID-19. The figure is actually around 3,500.

Breyer, a Clinton nominee, falsely said that 750 million new COVID-19 cases were recorded on Jan. 6. The United States has a population of 331 million people, and recorded just under 792,000 cases on Jan. 6.

Justice Elena Kagan, an Obama nominee, also drew criticism for claiming “we know that the best way to prevent spread is for people to get vaccinated and to prevent dangerous illness and death is for people to get vaccinated” and that “the second best is to wear masks.”

Vaccines do not prevent transmission of the virus that causes COVID-19, according to the Centers for Disease Control and Prevention, though they do help prevent severe illness.

Many masks, meanwhile, have little effect on the virus, studies have found. A growing number of experts have recently acknowledged the research and are encouraging people to buy and use rated masks like KN95s.

During the sessions, justices appeared skeptical of the Biden administration having the authority to put forth the mandates, but the court has not yet intervened even as they have come into effect.