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SCOTUS Justices’ COVID ignorance illustrates why they should stay in their lane
By Selwyn Duke
Aside from labeling herself “an affirmative action baby,” Supreme Court Justice Sonya Sotomayor once called herself a “wise Latina.” Given this, apropos here is a line from ancient Chinese sage Confucius:
“Wisdom is, when you know something, knowing that you know it; and when you do not know something, knowing that you do not know it.”
Sotomayor certainly failed this test during oral arguments on Friday over the Biden Administration’s COVID-19 “vaccine” mandates, making outlandishly incorrect claims that have brought her mockery. “We have hospitals that are almost at full capacity with people severely ill on ventilators,” she stated matter-of-factly. “We have over 100,000 children, which we've never had before, in serious condition, many on ventilators.”
Both assertions are so distant from reality that one could wonder where the judge gets her information; even limiting yourself to just New York Times perusal shouldn’t yield such profound ignorance.
In reality, hospitals are not nearly overwhelmed, and the children hospitalized who have coronavirus number only about 3,700 according to the CDC. Yet even this is misleading. As Dr. Anthony Fauci himself admitted recently — with Democrats’ tanking poll numbers inspiring him to paint a rosier picture — most of these children are hospitalized “with” SARS-CoV-2, not “because” of COVID-19.
(Note: The former is the pathogen; “COVID-19” is the disease that can result from it. So, technically, it’s not even correct to say that asymptomatic kids under medical care and testing positive for the virus are hospitalized “with COVID”; there is no “COVID” because they have no symptoms.)
As Fauci confessed, every child admitted to the hospital is automatically tested for the China virus, and thus will a kid being treated for a broken leg be listed as a hospitalization “with” SARS-CoV-2 upon a positive result. Of course, this merely echoes what those of us in the truthful media have been saying for, uh...almost two years.
What’s more, even though pediatric with-China-virus hospitalizations appear to have risen, this is likely only because we’re in respiratory disease season and the Omicron variant is more contagious (but less deadly) than earlier strains.
The bottom line, however, is that healthy children are not imperiled by this disease. In fact, a recent study analyzing 15 months of the pandemic in Germany, a nation of 83 million people, found that not even one healthy youngster died of COVID.
Sotomayor wasn’t alone in proving that epidemiology isn’t her bag. Justice Neil Gorsuch said during oral arguments that “[w]e have flu vaccines. Flu kills — I believe — hundreds of thousands of people every year." While the judge didn’t explicitly say that he was referencing the United States (and not the world), his comments’ context makes clear that he was talking about our country. In reality, however, influenza claims an average of between 12,000 and 60,000 Americans annually.
In fairness, Gorsuch’s mistake wasn’t as egregious as Sotomayor’s. Not only did he preface his claim with “I believe,” indicating unsureness, but severe flu pandemics have killed upwards of 100,000. The Spanish flu in 1918-’19, for example, claimed 675,000 Americans (more than two million adjusted for today’s population). Nonetheless, he still was in error.
All this said, it wouldn’t matter if there were one million American kids hospitalized for COVID and 100,000 on ventilators or if only two people died of the flu yearly — not insofar as a judge’s role goes, anyway.
A justice’s job is merely to render opinions on the constitutionality of executive and legislative actions, not on the wisdom of those actions. It’s not the business of the courts to remedy a perhaps stupid but constitutional law, order or status quo (or to be party to an unconstitutional one); that’s the role of legislators and/or chief executives, whose errancy can be remedied by the people, should the latter experience a moment of clarity at election time.
But Sotomayor’s and Gorsuch’s errors illustrate another reason why judges should stay in their lane:
When perhaps drunk on power and venturing beyond their lane, they get lost and swerve and too frequently crash even worse than when they, often wantingly, attempt to conduct their legitimate duties.
What’s more, we’re the ones they crash into.
Now, I could note here about lawyers in general, as Anglo-Irish satirist Jonathan Swift did in Gulliver’s Travels, "that in all points out of their own trade, they were usually the most ignorant and stupid generation among us, the most despicable in common conversation, avowed enemies to all knowledge and learning, and equally disposed to pervert the general reason of mankind in every other subject of discourse as in that of their own profession."
But I wouldn’t do that (and not just because Swift already did). Rather, the point is that lawyers are specialists just like any other specialist, not Experts in the Area of Everything. As Professor Thomas Sowell has put it, most of us have expertise in only a narrow sphere of endeavor. Thus must a judge or leader possess enough humility to accept and recognize his limitations and not become a shining example of how a “little knowledge is dangerous.”
Unfortunately, though power may certainly corrupt, it surely can reveal a person’s true character. And part of the reason judges arrogantly engage in judicial activism is that we’ve invited them out of their lane. I reference here the idea of judicial supremacy, the notion that courts’ opinions are not only binding on those party to the case before them, but on the executive and legislative governmental branches as well.
This power, do note, was declared for the courts by the courts themselves, notably via the Marbury v. Madison decision (1803), and is not in the Constitution. It also is an idea that, if considered valid, Thomas Jefferson warned, would render our Constitution a felo de se — an act of suicide.
The proper role of the courts is, first, to rule on individual cases, with their decisions binding on a particular case’s litigants but no one else. Second and as Ambassador Alan Keyes put it to me on the phone years ago, their function is to act as an “alarm bell,” saying at times to the nation, “Beware! We think this law is unconstitutional; you need to take a look at it.” If the people are convinced, it’s then their job to elect officials who will effect the necessary change.
Conservatives will understandably be very happy if the SCOTUS strikes down the Biden administration’s “vaccine” coercion and if the feds, reflecting what they more or less have done for 200 years, then abide by the decision. Nonetheless, if Sotomayoresque stupidity doesn’t illustrate the folly of allowing five black-robed lawyers to decide what law means for 334 million people, I’m not sure what will.
By the way, some may wonder what we’d do if the courts couldn’t “strike down” the vax mandate wholesale. Well, a proper constitutional understanding also informs that the states have the power to nullify unconstitutional federal actions; this would especially carry moral weight if the “alarm bell” SCOTUS had already opined against the given action.
The bottom line is that the judiciary should be the weakest branch, as Alexander Hamilton said, not the strongest precisely because unelected judges are shielded from the consequences of their folly. And, as English philosopher Herbert Spencer warned, "The ultimate result of shielding men from the effects of folly is to fill the world with fools."
And a bench of fools doesn’t make for a very good oligarchy.