Justice Sotomayor stuns court observers with dubious COVID-19 claims

News & Politics

Supreme Court Justice Sonia Sotomayor astonished critics during oral arguments on Friday by making numerous dubious claims about COVID-19.

Court observers watching arguments for and against the Biden administration’s employer vaccine mandate expressed shock when the justice, who attended arguments virtually, falsely claimed that 100,000 children are hospitalized and in “serious condition” from COVID-19 in the United States.

“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, and many on ventilators,” Sotomayor claimed.


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Critics were quick to point out Sotomayor’s numbers were incorrect. According to data from the Department of Health and Human Services, there are 3,342 pediatric hospitalizations for COVID-19 in the United States. The Centers for Disease Control and Prevention reported Tuesday that the average number of children admitted to the hospital per day with COVID-19 was 776.

The total number of children hospitalized with COVID between Aug. 2020 and Jan. 4, 2022, is 81,923, according to the CDC.



While there has been a spike in children who have been hospitalized with COVID-19, White House chief medical adviser Dr. Anthony Fauci explained last week that many children are being admitted to the hospital for unrelated ailments and then are testing positive for the virus.

“First of all, quantitatively, you’re having so many more people, including children, who are getting infected. And even though hospitalization among children is much, much lower on a percentage basis than hospitalizations for adults, particularly elderly individuals,” Fauci said on MSNBC on Dec. 30. “When you have such a large volume of infections among children, even with a low level of rate of infection, you’re going to still see a lot more children who get hospitalized.”

“But the other important thing is that if you look at the children who are hospitalized, many of them are hospitalized with COVID as opposed to because of COVID,” Fauci explained. “And what we mean by that — if a child goes in the hospital, they automatically get tested for COVID. And they get counted as a COVID-hospitalized individual. When in fact, they may go in for a broken leg or appendicitis or something like that. So it’s overcounting the number of children who are, quote, ‘hospitalized with COVID,’ as opposed to because of COVID.”

Sotomayor made several other unfounded claims about the virus. At one point, a lawyer for the National Federation of Independent Businesses — the group challenging the Occupational Safety and Health Administration’s mandate — noted that the OSHA mandate was implemented when the Delta variant was the most prevalent variant in the U.S. and that the now-dominant Omicron variant causes less severe disease.

Sotomayor interrupted, claiming, “Counsel, those numbers show that Omicron is as deadly and causes as much serious disease in the unvaccinated as Delta did.”


On the contrary, research suggests that Omicron causes less severe disease than previous variants of the virus. The New York Times reported on Dec. 31 that animal studies found Omicron is mainly an upper respiratory disease that produced less damaging infections to the lungs. Those findings followed early studies of human patients with Omicron that suggested the virus causes less severe disease, especially in vaccinated people.


Other justices appointed by Democrat presidents made equally extraordinary and incorrect statements about COVID-19.

Justice Stephen Breyer claimed there were “750 million new cases yesterday, or close to that.” The actual number was 727,863, and the daily average cases reported for Jan. 6 was 610,989, according to the New York Times.


Breyer also wrongly suggested that hospitals in the U.S. are nearly over capacity because of COVID-19 patients, which is not true.


Justice Elena Kagan piled on with a statement about how COVID-19 vaccination is the best way for people to prevent the spread of the virus. While the COVID-19 vaccines authorized for use in the U.S. have been found to prevent severe disease and death in most cases, the CDC warns that “anyone with Omicron infection can spread the virus to others.”


Additionally, the CDC says that fully vaccinated people who contract a Delta variant breakthrough infection “can spread the virus to others,” albeit for a reportedly shorter time than unvaccinated people.

The Supreme Court will decide whether to issue a stay preventing the Biden administration from enforcing an OSHA temporary emergency standard, which mandates that businesses with 100 or more employees must require their workers to get vaccinated against COVID-19 or submit to involuntary weekly virus testing. Challengers contest that the Labor Department does not have the constitutional authority to both create and enforce the mandate.

Sotomayor tipped her hand on this issue, repeatedly arguing that the term “vaccine mandate” was inaccurate because the OSHA standard includes the testing option.

“There’s no requirement here. It’s not a vaccine mandate. It’s something totally different,” Sotomayor said.

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