Corrections

Did Supreme Court Justice Neil M. Gorsuch misstate the number of flu deaths? The transcript—not the justice—was wrong. https://t.co/HeTKdHo1JF #SCOTUS

— ABA Journal (@ABAJournal) January 11, 2022

This is the latest cause celebre in certain circles of Twitter.  It is in part a counter-balance, or an effort at it, against what Justice Sotomayor did say.

The ugliness toward Justice Sotomayor is equal parts offensive and entirely unsurprising given where it’s coming from.

— Steve Vladeck (@steve_vladeck) January 8, 2022

Not surprisingly, since this is taking place largely on Twitter, tensions run high in all camps.  Justice Gorsuch was reported for saying "hundreds of thousands" of deaths from flu every year, when the audio showed he didn't quite say that:

NEW: in Friday's transcript of the OSHA vaccine rule oral argument, Justice Gorsuch was recorded as claiming (erroneously) that "hundreds of thousands" die yearly from the flu. That transcript has been corrected to show "hundreds, thousands", which is consistent with the audio. pic.twitter.com/v7H03PF4OU

— Steven Mazie (@stevenmazie) January 10, 2022

But the issue is not the "right number" v. an exaggerated number. The issue is apples v. oranges. And the problem is not the transcript v. the audio, it's the rules of appellate procedure v. the practices of the Roberts court:

Yesterday’s arguments in the vaccine cases - a full-on display of the consequences of a truncated litigation process - compels a closer look ⁦@steve_vladeck⁩’s recent op-ed in the ⁦@nytimes⁩. https://t.co/E1cemP91gO

— Sherrilyn Ifill (@Sifill_LDF) January 8, 2022

Let me just briefly note something most non-lawyers don't realize: appellate courts don't hear evidence.  The stuff that squeezes through the gates of the Rules of Evidence, a gate guarded by a trial judge, is the evidence and record reviewed by an appellate court like the Supreme Court.  In the case of a full record, the Court would be bound by, and stick to, the record before it.  Allowing in extraneous information like a vague assertion as to the number of deaths from influenza "every year" (which year, the trial judge would immediately ask the witness, and strike any cloud of data as in violation of the rules of evidence) is not done in appellate hearings precisely because it undermines the rules of evidence and the entire order of the appellate system.  Appellate courts are bound by the record before them, or there's no reason to go to the trouble of a trial, a record, and keeping out evidence that is not, in fact, evidence.  That's the point Prof. Vladek is making.  I won't go into the deep analysis of this issue; I just mention it as deep background.

So when Justice Gorsuch pulled his numbers out of the air, why did he do that?  To prove there was no crisis?  He did it in part because this case has not developed a record at the trial court. It has barely been in court at all, and already the Supremes want to rule on it. Part of Professor Vladeck’s analysis is that the Court took this case prematurely; that this is why we have an appellate process rather than courts just ruling “Like it, don’t like it.” But as to Gorsuch’s statement, we are in a pandemic, not a seasonal flu outbreak.  

A flu pandemic happens when a new kind of flu virus causes people to get sick all over the world. It can last for many months, affect many different places and be very dangerous. Millions of people around the world might get very sick. Many people could die. In the 1900s there were three flu pandemics, including the Spanish Flu of 1918 which caused over 40 million deaths worldwide (over 500,000 in the U.S.)

Over 500,000 people died in America alone in the Spanish flu pandemic.  The number of Americans dead from covid is reaching 900,000.  We are on track to lose twice as many people to this disease as we lost to the iconic flu epidemic of over a century ago. Had OSHA been in existence in 1918, would it have been ill-advised to allow it to try to stem the spread of the disease?  Is this situation really like the annual flu outbreaks we expect every year (but ironically didn't get last year, largely because everyone was trying to avoid contracting covid, which has proven far more contagious and virulent than any flu outbreak since 1918?)? Justice Gorsuch was misquoted in the transcript.  That doesn't mean even his correct statement made a valid point, or has a place in the legal issues under consideration. Justice Gorsuch is not exonerated by the transcript’s correction. The problem remains: he still thinks abstract ideas are more important than peoples’ lives.

Nothing is changed; and yet a great deal has changed. We need to be watching the donut and not the hole.