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.” – Justice Sonia Sotomayor, during oral argument at the Supreme Court, Jan. 7

Several readers questioned these remarks by Sotomayor, made during a hearing on whether the Biden administration’s nationwide rules ordering a vaccination-or-testing requirement on large employers were constitutional. Her remarks came during an exchange with Ben Flowers, Ohio’s solicitor general, as he referred to a brief filed by the American Commitment Foundation, which argued that the rise of the omicron variant had made the vaccine rules less relevant because vaccines do not appear especially effective against it.

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(We will not address remarks made by Justice Neil Gorsuch, which some readers also thought were wrong. The official court transcript suggested he had made an inflated statement about the annual flu: “Flu kills – I believe – hundreds of thousands of people every year.” The flu kills between 12,000 and 52,000 people in the United States a year, but the audio of the argument shows Gorsuch actually said that “flu kills, I believe, hundreds, thousands of people every year.” So the transcript is incorrect.)

 

The Facts

The brief in question sought to update the court on the latest scientific and technical information on the omicron variant, as that had emerged with force after the mandate was proposed. Epidemiologists Jay Bhattacharya of Stanford University and Andrew Bostom of Brown University helped advise on it.

Its key argument, citing data from countries such as South Africa and Denmark, was that omicron cases were 80% less likely to get hospitalized (South Africa) and three times less likely to end up with hospital admissions than the delta variant (Denmark). Moreover, the brief argued, the case fatality rate in South Africa plunged dramatically when omicron became dominant.

Flowers, who said he had been twice vaccinated and received a booster, participated remotely after testing positive for covid. His symptoms were said to be “exceptionally mild.”

“My presence here as a triple vaccinated individual by phone” suggested “vaccines do not appear to be very effective in stopping the spread or transmission,” he said, though he added that vaccines are effective at preventing “severe consequences.” That’s when Sotomayor interrupted him to assert “those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did.” She argued that “saying it’s a different variant just underscores the fact” a workplace rule was needed.

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