Judging Freedom - Supreme Court Justices are under fire for COVID-19 misinformation

Episode Date: January 10, 2022

How critical should we be about SCOTUS misinformation? Judge Napolitano details the recent headlines surrounding the Supreme Court.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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Save $80 with code SPACE80 at Talkspace.com. good morning everyone judge napolitano here with another pop-up today is monday january 10 2022 the monday after a rather extraordinary and even in the modern era unheard of four hour oral argument before the supreme Court of the United States on a case that hadn't even been tried yet. And because the case had not been tried and there was no record below of what the facts were, various Supreme Court justices were grasping onto their own facts from a variety of sources. Now, I'm not giving this pop-up to criticize any particular justices because I don't like them or because I disagree with them. I'm being critical of the manner in

which the court operated with no record below. But what do I mean by a record below? Okay. So in the ordinary case, there is a trial in state or federal court, and at the end of the trial, there are findings. A jury finds the defendant guilty or a jury awards money to a plaintiff. And when it does so, it finds that the defendant did the following acts, which resulted in his obligation to pay the plaintiff. Whatever these findings are, they're then appealed. And eventually that appeal makes its way to the Supreme Court. The findings, the jury's verdict, sometimes something called special interrogatories where juries answer specific questions, sometimes judges make findings, those findings below are based on evidence in the case,

and that is part of the record before the Supreme Court. That is at least the ordinary way that an appeal works. In the appeal that was argued on Friday, it was an appeal of a decision to prevent the government from enforcing President Biden's two executive orders on COVID. One said that everybody, every employer of 100 or more employees is required to assure that those employees have all been vaccinated or checked once a week, and the failure to do that can result in a $14,000 fine per person, per employee. The other, I'm making a face because none of this is constitutional, but that's not

what I'm talking about this morning. The other issue, the other case before the Supreme Court on Friday was another order by the president, which said all health care workers that use federal funds, Medicaid, Medicare, federal support for a given hospital or health care system, are also required to be vaccinated. No option to be tested, no religious or personal bodily integrity exemption, just that you work in the health care field using federal dollars, you got to be vaccinated. Those two issues were before the Supreme Court. The issue before the court in those two cases was whether or not the president can make up these rules. Those of you who are familiar with my writings and with my

podcast know that I've been arguing consistently and even vociferously, the president can't make up rules. Only Congress can write laws. That's not me. That's James Madison. That's the Constitution. So in the oral arguments on Friday, there was no trial below because judges just made split-second decisions on the basis of what they thought juries or they would likely do. And then appellate judges made the same decisions. And then the case went to the Supreme Court. So when there's no record of factual findings below on what does the Supreme Court base

its opinion, what facts? Well, that's the criticism this morning. Where did certain justices get their facts that they used in oral argument? Justice Breyer said the country is faced with 750,000 new COVID cases a day. Well, that is entirely incorrect. Where did he get it from? We don't know. Justice Sotomayor is a friend of mine. She's not going to be happy with me for this, but she is a friend of mine. She said we have 100,000 children in this country sick with COVID. Well, that's not even close to being accurate. The number is somewhere around 3,500. So where do justices get these facts from when there's no trial below? Answer, we don't know.

They can get them from a newspaper. They can get them from a newspaper. They can get them from a think tank. They can get them from their own reasoning and their own reading. That's why the Supreme Court doesn't ordinarily hold oral arguments on cases where there has not been a trial and there have not been findings of facts from below. But in this case, because the Biden administration insisted it wanted to start enforcing these rules on January 4, which is now a week ago, the court said, okay, we'll hold oral argument. It's embarrassing for the court to hold oral argument without a record below and when justices sort of come up with their own facts you know there's an old uh phrase when you're trying cases when they when the facts are

against you pound the law and when the law is against you pound the facts and we're both they're both against you pound the table sort of a funny one-liner that trial lawyers and judges use in that small, closely-knit community of people who do every day what I did when I was on the bench. But to be serious about it, judges cannot make up their own facts. They can't just come up with facts out of thin air. And Supreme Court justices can't do that either. How will this end up? I think the Biden administration is going to be stopped dead in its tracks. But if it's stopped dead in its tracks on the basis of facts that were not before the court, will the court lose credibility again? Who knows? Judge Napolitano, judging freedom.