Did Neil Gorsuch Say 'Hundreds of Thousands' Die from Flu Yearly?
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SCOTUS Edits Transcript: Justice Gorsuch Said ‘Hundreds, Thousands’ Die Yearly from Flu, Not ‘Hundreds of Thousands’

Associate Justice Neil Gorsuch stands during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

Supreme Court Justice Neil Gorsuch got a ton of flack on Friday after he made what sounded like an erroneous comment about flu death statistics during oral arguments over the Biden administration vaccination mandates, but the court’s transcript has since been edited in a small but significant way.

The justices last week were considering an emergency appeal brought by the State of Ohio against the Occupational Safety and Health Administration’s (OSHA) regulation requiring employers to mandate vaccination or a mask-and-test policy for employees.

During colloquy with Solicitor General Elizabeth Prelogar, who argued for the federal government, Gorsuch asked why OSHA has never mandated the flu vaccine for workers.

He said:

We have vaccines against that — that, but the federal government through OSHA, so far as I know, and you can correct me, does not mandate every worker in the country to receive such a vaccine.

Then, the justice offered some statistics. Originally, he was reported to have said the following [emphasis ours]:

We have flu vaccines. The flu kills, I believe, hundreds of thousands of people every year. OSHA has never purported to regulate on that basis.

Immediately, court listeners erupted on social media, slamming Gorsuch for getting the numbers wrong.

According to a Centers for Disease Control and Prevention estimate, the flu accounts for approximately 12,000 to 52,000 deaths a year — an amount far below the “hundreds of thousands” to which the justice appeared to refer.

As of Monday, however, Gorsuch’s quote was changed in official court transcripts to reflect his actual quote: “The flu kills, I believe, hundreds, thousands of people every year” (again, emphasis ours).

Some who listened to the SCOTUS arguments in real time pointed out that an audio recording of the oral arguments sounded as though Gorsuch had indeed said, “hundreds, thousands.”

The corrected quote, however, draws additional attention to a key argument point for those seeking to uphold OSHA’s vaccine regulation: COVID-19 is far deadlier than is the seasonal flu. While the flu is responsible for tens of thousands of deaths annually, the CDC says COVID-19 is to blame for more than 830,000 American deaths during the pandemic.

This disparity in scope is a fundamental factor that the Biden administration cited in support of its use of authority on this issue. As Justice Elena Kagan phrased it during Friday’s oral arguments, “it’s an extraordinary use of emergency power occurring during an extraordinary circumstance.”

[image via Erin Schaff/POOL/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos