Thursday, January 13, 2022


My favorite college course was called Constitutional Law. We studied famous, sometimes controversial cases the Court has heard over the 200+ years of the United States. We read the opinions offered by both the prevailing and the dissenting Justices. The course was my favorite because the decisions were based on the Justices’ interpretation of the amazing document we know as The United States Constitution. 

The deliberative process lent itself to courteous debate, respect of previous Court decisions and the perceived intent of the Constitution. The Supreme Court has largely ignored the trends of the day or politically popular solutions and instead looked at what the Founding Fathers intended, the letter of the law.

In a nutshell, the job of the nine Justices is to define, defend, and uphold the American Constitution. They are tasked with doing this based on the facts and case law review. Decisions by the high Court are nearly always given with formal opinions explaining the factual and Constitutional reasons for their decision. 

More often than not, a supermajority of 7-2, 8-1 or 9-0 is reached among the Justices. Still, anytime there is even one dissenting opinion, it provides evidence that rational people can consider the same facts, apply the same Constitution designed to govern those facts and come to a different conclusion. 

What cannot happen and has traditionally not been done is inject a Justice’s personal agenda or political whims into the process. For this reason, the Supreme Court is the most trusted of the branches of the US government. Fact-based decision-making gives a certain comfort level, even when one disagrees with the outcome.

However, it seems at least one member of the Supreme Court may be succumbing to the collective hysteria surrounding COVID-19 rather than focusing on the facts.

Justice Sonia Sotomayor has had Type 1 diabetes since childhood. She is 67 years old and is overweight. In short, she checks several of the high-risk boxes when it comes to possible complications from a COVID-19 infection. Until recently, she had been the only justice wearing a mask during oral arguments. She has mostly opted to stay in her Chambers when the Court hears arguments. This created a small bit of unintended irony during a recent argument regarding the Biden administration’s COVID-19 vaccine and testing mandates. Ms. Sotomayor is fully vaccinated and has received her booster shot. These actions could be prudent caution by someone with several risk factors. 

It might also be due to fear. Fear is the enemy of rational thought and decision-making. 

When the Supreme Court hears oral arguments, it is not unusual for a Justice to recite facts or data as a way of teeing up questions to the attorneys making their argument before the High Court. Sotomayer attempted this approach during the recent hearing on vaccine mandates.

She interrupted the presenting attorney with the following, “those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did.” She reasoned that “saying it’s a different variant just underscores the fact” that perhaps a workplace vaccine requirement is necessary. According to the CDC, however, Omicron is not anywhere near as deadly as Delta and far more vaccinated people are testing positive than unvaccinated. 

While her first series of comments were of questionable accuracy, she really jumped the shark with her next verbal volley.

“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.” Her statement is torn from the headlines of a hysterical media but is embarrassingly false. I’m not suggesting Justice Sotomayor intentionally tried to mislead us, but rather that her reasoning on this case is being driven by fear, not by facts. 

According to the readily available Health and Human Services Department data, almost 30% of intensive care beds were filled with Covid patients at the end of the first week of January. That is a far cry from “almost at full capacity.” 

HHS data also indicates that at the end of that same week, there were about 5000 children hospitalized, either with a confirmed positive COVID-19 test or suspected of having COVID-19. It would take twenty times that number of children in pediatric beds to reach Sotomayor’s fictional number of 100,000.  

A large chunk of those children were admitted for something other than COVID-19 and showed no symptoms, but when routinely tested for COVID-19, it came up positive. This is an important distinction because though statistically they are hospitalized with COVID-19, many of these children are not hospitalized because of COVID-19. 

John P. A. Ioannidis is a Greek-American physician-scientist and Stanford University professor. He specializes in research and evidence-based medicine. Ioannidis recently published a detailed study that concludes that the survival rate of people under the age of 20 who catch COVID-19 is 99.9987%. 

That is about as close to 100% as you can get. The really good news is that the data used for the study was taken before mass vaccinations were in full swing, meaning the numbers apply specifically to the unvaccinated. Hallelujah. 

Even when looking at all age groups, a recent study by the CDC found that only 5% of COVID-19 deaths listed the virus as the only cause of death. 

The facts I’ve just shared demonstrate one thing. Justice Sotomayor was wrong. Not simply a slight error, but she was colossally mistaken. Not only are there not 100,000 children suffering from COVID-19 in hospitals right now, but there also haven’t even been that many when you total up all the children hospitalized with COVID-19 nationwide since August of 2020. 

It appears Justice Sotomayor is extremely fearful of COVID-19, not only for herself but for society at large. She’s just like millions of other Americans who are scared. Their facts might be wrong, but their fear is real. 

However, Ms. Sotomayor is different from those millions of Americans in one important way. She is one of only nine people who get the final say on the law of the land, in this case regarding vaccine mandates. Fear has no place in that decision-making process. If Sotomayor wants to express an opinion on vaccine mandates or any other issue for that matter, the least she can do is get the facts. 

• Tim Constantine is a columnist for The Washington Times and hosts “The Capitol Hill Show” podcast every week from Washington, D.C.

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