Neil Gorsuch Takes Unwarranted Heat as Transcription Flub Suggests He Overstated Flu Deaths

Many on social media criticized and mocked Supreme Court Associate Justice Neil Gorsuch after they incorrectly believed he suggested on Friday that the seasonal flu kills "hundreds of thousands" each year in the United States. A correction on the court's official transcription issued Monday morning cleared up the issue. This article, too, has been corrected accordingly.

The Supreme Court on Friday heard oral arguments for and against President Joe Biden's mandate that large companies require employees to be vaccinated against COVID-19 or be tested weekly for the novel coronavirus. The mandate would be monitored and enforced by the Occupational Safety and Health Administration (OSHA). While the court's liberal justices appeared supportive of the Biden administration's requirements, some of the court's conservative justices appeared more skeptical of the mandate.

The official Supreme Court transcript of the remarks published on the judicial body's website said—until the Monday morning correction—"hundreds of thousands." Multiple journalists listening to him live or to recordings shortly after reported the remark the same way. However, others listening to the audio believed Gorsuch actually said "hundreds, thousands."

After multiple emails and phone calls, the Supreme Court's Public Information Office confirmed to Newsweek on Monday morning that the initial transcript was incorrect. The transcript has been fixed to say, "The flu kills, I believe, hundreds, thousands of people every year"—which is accurate.

"The flu kills people every year," Gorsuch said. "Traditionally OSHA does not regulate in this area."

"COVID-19 is unprecedented," U.S. solicitor general Elizabeth Prelogar responded.

"We have flu vaccines. The flu kills, I believe, hundreds, thousands of people every year," the conservative justice said, according to the updated official transcript. "How do we regulate that?" he asked.

The flu kills, at most, tens of thousands each year in the U.S. According to the Centers for Disease Control and Prevention (CDC), the flu kills between 12,000 and 52,000 Americans annually.

Meanwhile, the COVID-19 pandemic killed nearly 800,000 Americans from 2020 through 2021. In September 2018, then CDC Director Dr. Robert Redfield said that the previous winter's flu season had been the worst in some four decades, resulting in an estimated 80,000 deaths.

Prelogar later in the line of questioning with Gorsuch said that OSHA would likely require flu vaccines in more extreme cases, pointing to the 1918 flu pandemic as an example. "Certainly if there was a similar 1918 influenza outbreak like there was before," the attorney posited that OSHA may require vaccinations.

Many on social media were critical of the conservative justice, incorrectly believing he had said "hundreds of thousands" died annually of the flu in the U.S.—which would have been inaccurate. The Guardian's live blog of the hearing, The Nation's justice correspondent and an official stenographer of the Supreme Court all incorrectly heard and inaccurately transcribed Gorsuch's remarks—as did Newsweek.

"Gorsuch: 'the flu kills hundreds of thousands of people every year' NO IT DOES NOT. STOP GETTING YOUR MEDICAL STATS FROM FOX NEWS," Elie Mystal, a justice correspondent at The Nation, tweeted. He went on to link to accurate data about flu and COVID-19 deaths.

"I know Gorsuch, nor any conservative, nor any 'omg I'm bored and want to go to the movies' person, will APOLOGIZE for their consistent COVID misinformation, but COVID is ORDERS OF MAGNITUDE more deadly then [sic] the GODD**N FLU," Mystal added in a follow-up post.

"The flu kills about 30,000 Americans each year. I'm kinda surprised Gorsuch would broadcast his ignorance like this. I looked this up with help from Google in about 10 seconds," journalist Aaron Rupar tweeted.

Kaivan Shroff, a Democratic digital organizer, accused Gorsuch of "injecting disinfo into the debate on vaccine mandates." Continuing, Shroff's tweet said: "He *falsely* claimed that the flu kills hundreds of thousands of people every year. [CDC says 12,000-50,000 die from flu annually.]"

"In the U.S., CDC estimates the flu kills between 12,000–52,000 per year. Globally, WHO estimates the flu kills between 290,000-600,000 per year. Gorsuch is either 10x off the mark or has confused the U.S. with the world," Dr. Alexandra Phelan, an assistant professor at Georgetown, tweeted. "Both possibilities. Flu vax mandates are also not uncommon," she added.

Correction January 10, 2022 at 12:20 p.m. ET: This article and its headline have been changed to reflect that the Supreme Court confirmed to Newsweek on Monday morning that the official transcript of Gorsuch's remarks was inaccurate. Gorsuch said "hundreds, thousands," not "hundreds of thousands."