Patterico's Pontifications

1/18/2022

Constitutional Vanguard: An Error in Justice Gorsuch’s Concurrence in the OSHA Vaccine Mandate Case

Filed under: General — Patterico @ 8:28 am



I think I have found a significant error in Justice Gorsuch’s concurrence in the OSHA vaccine/testing mandate case. I was working on a summary of the cases — which I will make available as a paid-subscribers-only post later this week — when I ran across the error. All the details are here.

Recently, I was preparing a summary of the Supreme Court’s decision in the OSHA vaccine mandate case (as well as the related CMS decision) when I noticed something odd. In his concurrence in the OSHA case, Justice Gorsuch cited a brief from OSHA in order to claim that OSHA had taken a position in 2020 that supported the majority’s position in the OSHA case.

The problem is, Justice Gorsuch was wrong. OSHA did not argue the position that Justice Gorsuch claims OSHA argued.

Today’s post is free for all. Subscribe here.

45 Responses to “Constitutional Vanguard: An Error in Justice Gorsuch’s Concurrence in the OSHA Vaccine Mandate Case”

  1. Your “here” link is broken.

    john (cd2753)

  2. Speaking of Gorsuch being wrong, he’s also an asshole who refuses to wear a mask, even though Roberts requested. It’s the reason Sotomayor attends remotely – she has diabetes and is at greater risk, and would otherwise sit next to Gorsuch.

    Victor (4959fb)

  3. @2, i’d read that. Really is A$$hole behavior.

    Time123 (9f42ee)

  4. You know you can email SCOTUS and ask them for a correction, right? LMK if you’d like guidance.

    Gabe (6d575f)

  5. @2

    Speaking of Gorsuch being wrong, he’s also an asshole who refuses to wear a mask, even though Roberts requested. It’s the reason Sotomayor attends remotely – she has diabetes and is at greater risk, and would otherwise sit next to Gorsuch.

    Victor (4959fb) — 1/18/2022 @ 10:57 am

    I’m an old hand in the healthcare setting and even back then we knew masks (of any kind) is kind of useless against the adeno/corona respiratory virus.

    The mask adherent, or lack thereof, is turning this sort of “mcguffin” where both sides uses to bash the other positions.

    If Sotomayor is that concerned, then she can be the one to socially distance. She shouldn’t be the one to demand everyone in her sphere to oblige.

    whembly (15c62b)

  6. Whembly, Seems kind of like an extension to asking someone to cover their mouth when they sneeze. Not something you’d usually make a big deal over, but if you have a complications that give you higher risk (age and diabetes) it doesn’t seem like an unreasonable request to me.

    Time123 (9f42ee)

  7. I’m gonna be the guy who suggests that Gorsuch’s actions (right/wrong) were prolly informed by his personal knowledge of Sotomayor, and directly influenced by the way he was asked to “comply.” – Gurgle BURP!

    Unless one of you yahoos were right there, when it happened, your opinion of the matter will only sound, to me, like so much cud negotiating its way through the digestive tract of a cow.

    felipe (484255)

  8. Hey, Asset, I’m gonna reprint your comment, here. I think it is apt:

    There are two ways to make people behave positive reinforcement and negative reinforcement. You can get more cooperation with a kind word and a cattle prod then you can with a kind word. B.F. skinner. I don’t care what you think I only care how you behave!
    asset (aa4544) — 1/18/2022 @ 2:14 pm

    felipe (484255)

  9. Voltaire warned, “Anyone who can make you believe absurdities can make you commit atrocities.”

    Horatio (6f8983)

  10. Speaking of Gorsuch being wrong, he’s also an asshole who refuses to wear a mask, even though Roberts requested.

    The way the rules have been explained, it is up to you to prove that Roberts made any such request.

    Good luck! 👍

    BuDuh (4a7846)

  11. It’s not that rare for Supreme Court Justices to make glaring errors in matters of fact. Didn’t Gorsuch maake some kind of mistake like this before?

    Maybe Gorsch is a poor judge or relies on his law clerks and doesn’t check their work.

    Here though the mistake is mischaracterizing a brief filed before the court less than two years ago.

    The point of the brief is that the proposed regulation would have had OSHA make emergency rules against a vague category of threats, (infectious diseases), not that these threats arose outside the workplace.

    Sammy Finkelman (c49738)

  12. if you’ve got diabetes, are of a certain age, and are portly, are you really going to feel protected cuz one guy next to you is wearing a mask?

    JF (e1156d)

  13. Check your sources re the NPR-Nina Totenberg story on the purpoerted Sotomayor/Gorsuch kerfuffle.

    https://www.newsbusters.org/blogs/nb/nicholas-fondacaro/2022/01/18/shannon-bream-busts-fake-news-npr-gorsuch-spiteful-masking

    https://thepostmillennial.com/npr-report-false-sotomayor-gorsuch

    It appears it never happened.

    More Fake News.

    Liberty & Truth require constant vigilance. GLZ.

    Gary L. Zerman (a1521c)

  14. It’s not that rare for Supreme Court Justices to make glaring errors in matters of fact. Didn’t Gorsuch maake some kind of mistake like this before?

    Just think of the constant errors Sotomayor makes before breakfast.

    Kevin M (ab1c11)

  15. B.F. Skinner never said that. Not ever! He abjured negative reinforcement and posited …wait for it … positive reinforcement. He did, however, say: “Confabulating assholes will say all kinds of sh!t and put a famous person’s name to it to make themselves sound learned and wise.”

    nk (1d9030)

  16. 10. BuDuh (4a7846) — 1/18/2022 @ 4:30 pm

    The way the rules have been explained, it is up to you to prove that Roberts made any such request.

    Good luck!

    It comes from Nina Totenberg of NPR and PBS:

    https://www.npr.org/2022/01/18/1073428376/supreme-court-justices-arent-scorpions-but-not-happy-campers-either

    …..according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

    They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.

    Sammy Finkelman (c49738)

  17. HA! Well said, nk. Just like it was “too good to check” the Gorsuch “incident.” it was too good to check the B.F. Skinner attribution. See? I hope we all learned something today…

    felipe (484255)

  18. Now, who will check nk’s work?

    felipe (484255)

  19. The justices resumed in-person arguments last fall, and at that time Sotomayor started wearing a mask. After the new year and Omicron she wanted everyone else to also wear a mask when they met in person, and all but Gorsuch agreed.

    I suppose Chief Justice Roberts may have asked the other Justices to do so anyway even if she wasn’t attending.

    More from Nina Totenberg:

    At his first sitting in 2017, he {Gorsuch] sought to dominate the argument and repeatedly suggested that a complex case, involving conflicting provisions, was really very simple.

    “Wouldn’t it be easier if we just followed the plain text of the statute?” he asked over and over. “What am I missing?”

    A lot, said his colleagues, both liberal and conservative.

    “This is unbelievably complicated,” lamented conservative Justice Samuel Alito. Whoever wrote the statute must be “somebody who takes pleasure tearing the wings off flies,” he said, provoking loud snickers on the bench.

    She also writes that Alito expected to be named Chief Justice in 2005, but Rehnquist died after postponing his retirement, and Bush had hit it off with Roberts and wanted the vacancy filled faster and switched his nomination to Chief Justice and Alito wound up becoming only an Associate Justice.

    (Rehnquist had been expected to retire because of his illness, but he postponed it because he hoped to live and work another year at least so Sandra Day O’Connor decided to retire instead that year, and then Rehnquist died.)

    Sammy Finkelman (c49738)

  20. Nina is a smart gal.

    BuDuh (4a7846)

  21. More mistakes:

    Supreme Court Fixes Transcript After Justices Come Under Fire For Covid Misinformation
    The Supreme Court revised the transcript of Friday’s oral arguments on the federal government’s Covid-19 vaccine mandates, after originally erroneously reporting Justice Neil Gorsuch claimed the flu kills “hundreds of thousands” annually, as both Gorsuch and Justice Sonia Sotomayor have been criticized for making false statements during the hearing.
    …….

    Rip Murdock (379be7)

  22. Gary Zerman,

    Here’s how your Newsbusters source contradicts Nina Totenberg:

    But, as it turns out, what she was claiming about the supposed masking feud wasn’t true according to Bream’s inside source. “I am told that is not accurate,” she pointedly shot down Totenberg’s claims after giving a fair summary of the report.

    According to Bream’s source, “there has been no blanket admonition or request from Chief Justice Roberts that the other Justices begin wearing masks to arguments. The source further stated Justice Sotomayor did not make any such request to Justice Gorsuch.”

    So we have an unnamed source, who is told it’s not accurate? And no “blanket” request, and that Sotomayor did not personally demand anything of Gorsuch.

    So why should I believe an unnamed source, who’s a little vague on exactly what happened as opposed to Nina? Nina’s been around a while. My guess is the unnamed source is probably one of the Gorsuch clerks.

    Victor (4959fb)

  23. R.I.P. Yvette Mimieux, 80.

    Time waits for no man.

    Or woman.

    DCSCA (f4c5e5)

  24. @22, we have dueling unnamed sources. If my coworker has diabetes putting a mask on during an outbreak seems like a civil thing to do. Akin to not caught going on them or turning my radio down. Doesn’t seem like a big request to me. But the issue seems like a tempest in a teapot to me.

    Time123 (9f42ee)

  25. @6

    Whembly, Seems kind of like an extension to asking someone to cover their mouth when they sneeze. Not something you’d usually make a big deal over, but if you have a complications that give you higher risk (age and diabetes) it doesn’t seem like an unreasonable request to me.

    Time123 (9f42ee) — 1/18/2022 @ 2:30 pm

    That’s the problem for me.

    Wearing masks isn’t a zero cost thing, as it’s more than just “cover your mouth when you sneeze”.

    Besides it being utterly useless in school setting and the need for it is extremely hard to justify, there are other reasons to consider.

    If you recall, I’m profoundly deaf (cochlear in one ear and hearing aid in the other) and the isolation I’m feeling in this society is worsen as I can’t read lips when the mouth is covered. I’m a introvert who has managed this fine, but I can only imagine in my deaf community the cost this pandemic has caused socially, and it’s a different kind of pain.

    Coupled with understanding that there’s no strong evidence the masks makes much of a difference, we need to start having a conversation to rollback these policies. Especially in light of the CDC’s efforts to start requiring (it’s not there yet, but it’s coming) N95 mask. Has anyone here wore an FITTED N95 mask? I have and it’s brutal. (it used to be you needed a doctor’s autorization for you to wear one all day… I wonder what happened to that requirement?).

    With the upbitiquitous of vaccines and boosters, the data shows that it doesn’t prevent covid infection. At some point we have to recall how adaptive immunity actually works. IT DOESN’T STOP EXPOSURE. Policy-wise we need vaccines and theraputics available, just like we do with the other adeno/corona diseases.

    It’s time that policy makers need to realize this and stop pushing distrupting policies that hasn’t shown to make any difference (masking).

    whembly (7baeb9)

  26. Whembly, read this on a phone and just wanted to say that I’m really sorry for what you’re going through. I agree that mitigation strategies need to be balanced with trade offs.

    Time123 (9f42ee)

  27. @26 Thanks Time… you’re a good egg. 😉

    whembly (7baeb9)

  28. Here’s an interesting analysis taking a macro view of the numbers:
    https://brownstone.org/articles/is-masking-kids-at-school-working/

    whembly (7baeb9)

  29. Whembly, one thing I want to emphasize is the difference between a blanket policy “everyone/no one wear mask” and a specific request “Wear/don’t wear masks because reasons”

    My comments about Gorsuch were regarding the latter of the two.

    I think I’ve seen data in the past that effective masking does lead to reduced spread, which is logical. But how much and where effective use is possible seems a good topic to debate. Adults in a store can probably get some benefit. A kindergarten classroom, likely no.

    Time123 (9f42ee)

  30. Is Nina Totenberg smart? Yes.

    Is she unbiased? No. Which is inappropriate at NPR.

    (It is fitting that this pro-abortion extremist has no children.)

    Jim Miller (edcec1)

  31. I think OSHA can mandate masks in the workplace. N95 and N100 even. Maybe Sotomayor could lodge a complaint with them?

    nk (1d9030)

  32. New statement from Gorsuch & Sotomyor that the original story is wrong. I retract my statement that Gorsuch is being an A$$hole.

    Time123 (9f42ee)

  33. https://www.foxnews.com/media/sotomayor-gorsuch-dispute-npr-report-masking

    Here you go Victor.

    Stop falling for fake news just because it supports the leftist agenda.

    NJRob (eb56c3)

  34. @32

    New statement from Gorsuch & Sotomyor that the original story is wrong. I retract my statement that Gorsuch is being an A$$hole.

    Time123 (9f42ee) — 1/19/2022 @ 9:36 am

    Can we use this as a lesson here?

    I’m not picking on you, I just want to illustrate something here.

    Why do we give instant credence to these same journalists who does this over and over again? Could it be our lack of awareness of our own biases?

    whembly (7baeb9)

  35. Whembly, That’s good guidance, I hadn’t known totenberg to be unreliable in the past and NPR is generally a reliable news source.

    Time123 (9f42ee)

  36. The unasked question by Totenberg and others is whether Gorsuch would have donned a mask had Sotomayor chosen to show up. He doesn’t strike me an an inconsiderate guy.

    Paul Montagu (5de684)

  37. Re: Sotomayor and Gorsuch deny that she asked him to wear a mask.

    But that’s not what the report said. he report said that, according to more than one source, that
    “Sotomayor did not feel safe in close proximity to people who were unmasked.” And that “Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.”

    That Chief Justice Roberts made some request to the other justices has also been denied.
    ‘On some form” means this is second or third hand.

    All this was told to explain why all the other justices wore masks, and Sotomayor did not show up in person. Before the new year, all had shown up but only Sotomayor wore a mask.

    So the first question here is: If everybody else had worn a mask would Sotomayor have come in person? Or is that wrong? If not, how was Sotomayor’s decision made known?

    Sammy Finkelman (c49738)

  38. It appears that Sotomayor didn’t ask Gorsuch to mask up, but his behavior is still boorish at best — he sits in a poorly ventilated room next to a senior citizen with diabetes, with whom he has worked for years, and he isn’t *choosing on his own* to mask up to help her feel safer.

    I would not want to work with him.

    aphrael (4c4719)

  39. @35 totenberg and npr have been wearing their left wing bias on their sleeves for decades for anyone with two eyes

    JF (e1156d)

  40. Time123 (9f42ee) — 1/19/2022 @ 9:36 am

    Yes, Whembly. Time123 is a good egg. I’ve known this for awhile.

    felipe (484255)

  41. Is there a reason that none of the Outrage Crowd has read the Fox link?

    “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends,” Gorsuch and Sotomayor said in a joint statement to the media.

    “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench,” Chief Justice John Roberts said in a separate statement.

    Supreme Court justices Neil Gorsuch and Sonia Sotomayor issued a joint statement calling an NPR report “false.”

    Seems pretty simple.

    BuDuh (b3fb4e)

  42. Felipe and Whembly, thank you for the kind words.

    Time123 (9f42ee)

  43. I would not want to work with him.

    aphrael (4c4719) — 1/19/2022 @ 10:53 am

    This is just doubling down because it’s a leftist position.

    Does the shot work or not? Because the mask game is just a performance act.

    NJRob (0d0e2d)

  44. No, it’s not doubling down because it’d a lwftist position, and the mask game is not just a performance act.

    Masks filter the air. N95 masks do a fantastic job of reducing aerosols. Surgical masks do an OK job. Cloth masks do very little against aerosols and were a mistake.

    Vaccination reduces severity of infection, and reduces the period of infectivity.

    The two combined are substantially more effective than either alone, and either alone are substantially more effective than neither.

    There is no silver bullet.

    aphrael (4c4719)


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