Disappointed

That’s me—disappointed in how the mandate cases went before the SCOTUS. I had cautioned for weeks that the legal issues regarding Administrative State were separate from the scientific and medical issues, but I held out hope that the scientific data that has emerged over the course of the two year Covid Regime would still inform the oral arguments. Instead we got, as expected, outright lies from the liberal justices and surprisingly little informed challenges from the conservative justices.

Jeffery Tucker capsulizes my feelings—which I’m sure are shared by many others. His idea of “getting the courts out of science” is, of course, hopelessly naive. Naive about the nature of our constitutional system, but also naive about the scientific establishment has it has developed in the modern world. Rule by “scientists” would be no less dystopian than rule by any other group of “experts”—whether blackrobed or otherwise. Still, Tucker is right to say that this case points to deep rooted problems in our constitutional order—and in modern society more generally—that have been festering in the United States for at least the last century. And certainly the same goes for the rest of the West.

Get the Courts Out of Science

This morning I listened to the oral arguments in the case of the Biden administration’s vaccine mandates as enforced by OSHA. It was a demoralizing experience.

I heard some crazy things, such as a claim that “750 million” Americans just got Covid yesterday, and that 100,000 kids with Covid are in the hospital, many on ventilators. The correct number is 3,300 with positive tests, but not necessarily suffering from Covid. I further heard strong claims that the vaccines block disease spread, despite every bit of evidence to the contrary.  

It was my first time hearing oral arguments in the Supreme Court. I might have thought that facts on the ground would actually matter to people who are holding the fate of human liberty in their hands. I might have thought that they would be getting their information from somewhere other than their political intuition, mixed with wildly inaccurate claims from bloggers and media pundits. 

I was wrong. And that is deeply alarming. Or maybe it is a wake up call to us all. We have learned today that these people are no smarter than our neighbors, no more qualified to address complicated questions than our friends, and arguably far less informed than the Twittersphere about basic issues of Covid and public health. 

The backdrop of today’s arguments is that 74% of Americans of all ages have had at least one shot. Meanwhile, case numbers are up 500% in many places, and 721,000 new cases have been logged throughout the country, and that’s obviously a large underestimate because it does not count at-home tests which are selling out in stores around the country. 

The extremely obvious point – the most basic observation one can make about this data – is that the vaccinations are not controlling the spread. This has been granted already by the CDC and every other authority. 

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And yet, so far as I can understand this, that is the whole point of the vaccine mandate. It is to protect workers from getting Covid. There is zero evidence that this is possible with mass mandates in the workforce. People can get and are getting Covid anywhere and everywhere, among which surely means the workplace too. The vaccine is not stopping that. What will bring this pandemic to an end will not be the vaccines but the adaptation of human immune systems, exposed and then developing resilience. 

Apparently there was not one mention of natural immunity during the oral arguments, which is truly astounding. From what I could hear, there was a strangely truncated environment in which no one was willing to say certain obvious truths, almost as if a pre-set orthodoxy had been defined at the outset. There were certain givens that simply were not questioned; namely that this is a disease without precedent, that the state can stop it, that vaccines are the best ticket we have, that the unvaccinated have absolutely no good reason to remain that way. 

To be sure, the oral arguments are not what decides a case. The briefs filed for the court are much better on the side of opposing the mandates, while the briefs for the mandates are filled with untruths that are easily exploded. In the end, it is very likely that the mandate will be struck down in a 6 to 3 vote. I’m glad for that. We should be relieved. 

However, we need to do some serious thinking about what is going on here. …

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My highest hope is that the majority opinion here, if it goes the right way, will not be narrow and evasive, picking apart the mandate based on technicalities, but sweeping and fundamental. It should say in no uncertain terms that this mandate should never have been issued and that the court should never have to intervene in such matters in the future. 

Freedom requires at least the presumption that businesses (and all institutions) can operate without acting as proxies for the federal health police – pushing injections on their workers against their will – and that workers have the right to determine what medicines they will and will not take. 

The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state. It must be fixed. It won’t finally be fixed by a court but rather a dramatic cultural change that embraces certain fundamental propositions about liberty itself. We’ve played too many games and taken too many risks for too long.

 Let us hope that this case awakens a culture and a world to a desperate need for dramatic reform. Human rights and public health are too important to be left in the hands of high courts. 

Two points.

First, Tucker very rightly points out the strange “environment” in which the oral arguments took place, and especially the fact that certain truths could not be spoken—certainly by tacit consent those truths were not spoken. For me, the most basic of those truths was that a free society cannot accept without question, cannot take for granted, the truthfulness and expertise of our government and its agencies. If one thing has characterized these two years of the Covid Regime it has been the constant lying by formerly respected institutions and professions—starting with our medical and scientific institutions. Now, I’m not naive about this. I don’t for a moment suggest that this problem is of recent origin. But it’s terribly disappointing that this reality of pervasive lying received no mention from the Court—especially since the lower courts have been dealing with this reality (consider FDA’s attempt to bury the Pfizer data for three generations).

The second point is that I want to endorse Tucker’s final point—one that I have repeatedly made here. Difficult as this is to envision, we need a spiritual and cultural awakening in America if we are to have any hope of getting out of the hope we find ourselves in. Leadership from the Court—in the absence of any institutional leadership that I’m aware of in this regard—would be welcome.