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Oops! Lawyer in SCOTUS Mandate Case Tests Positive Despite Being Vaxxed and Boosted

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Some on the left couldn’t help finding irony that two of the state attorneys arguing against President Joe Biden’s employer COVID-19 vaccine mandates before the U.S. Supreme Court Friday tested positive for COVID and therefore had to make their case remotely.

But the irony works both ways, because at least one of the two lawyers was vaccinated and boosted, while the status of the other is unknown.

The Supreme Court heard oral arguments regarding the legality of two Biden employer vaccine mandates. One regulation by the Occupational Safety and Health Administration requires vaccines or testing for businesses with 100 employees or more.

“Twenty-seven states, along with the National Federation of Independent Business and other entities, then asked the Supreme Court to intervene and block OSHA from enforcing the rule,” CBS News reported.

A second regulation created by the Centers for Medicare and Medicaid Services mandates all health care workers at any facilities receiving federal dollars to be vaccinated.

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Twenty-four states have blocked implementation of this rule.

Reuters reported that Ohio Solicitor General Benjamin Flowers and Louisiana Solicitor General Liz Murrill had to make their arguments by phone after taking a COVID-19 test on Thursday.

“Ben who is vaccinated and boosted, tested positive for COVID-19 after Christmas. His symptoms were exceptionally mild and he has since fully recovered,” the Ohio attorney general’s office said in a statement.

“The Court required a PCR test yesterday which detected the virus so for that reason he is arguing remotely.”

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Murrill’s office did not indicate whether she is vaccinated, but simply stated, she would be arguing remotely “in accordance with COVID protocols.”

Democratic strategist Aaron Parnas responded to the news, tweeting, “JUST IN: Two lawyers that argued against Biden’s vaccine mandate in front of the Supreme Court have tested positive for COVID. The irony.”

Others on the left jumped into the fray, calling it karma or wondering if anyone is surprised.

But Matt Whitlock, who has worked in Republican communications, argued that Parnas missed the point: The vaccine did not prevent the COVID illness and both lawyers were able to do their jobs.

“The fact that they tested positive — after being vaccinated — and were still able to argue in front of the Supreme Court effectively… Doesn’t make a case for vaccine mandates…,” he wrote.

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Very true.

The University of Texas MD Anderson Center said on its website, “We’re definitely seeing more breakthrough infections with omicron than delta, simply because the efficacy of the vaccines is lower against it.”

‘[O]micron, in particular, has a lot of mutations that make it more transmissible and able to evade the passive immunity acquired from vaccination. So, the vaccines are not going to be as effective against it as they were against delta or other previous variants,” the medical center added.

MD Anderson further noted, “COVID-19 vaccines are still very effective at preventing serious illness” and that omicron does not appear to be as severe as previous strains.

The Boston Herald reported Tuesday as omicron surges more than 45,000 fully-vaccinated people tested positive in Massachusetts last week, which was a 122 percent spike from the week before.

The state is averaging of over 6,400 breakthrough infections per day.

It should be pointed out that Massachusetts has one of the most fully-vaccinated populations in the U.S. at over 75 percent.

The New York Times tracker shows the number of COVID-19 cases in the U.S. spiked to over 1 million on Monday for the first time since the pandemic began. The new cases stayed above 700,000 each day through Thursday, so this obviously reflects a lot of breakthrough cases due to omicron.

By way of comparison, the highest daily total of COVID-positive tests during the previous nationwide peak in January 2021 was approximately 250,000.

Dr. Robert Malone, who helped invent the mRNA technology used in the Pfizer and Moderna COVID-19 vaccines, said they are proving ineffective at preventing omicron infection.

“Omicron blows right through the vaccines and through the triple jab,” Malone told Fox News host Laura Ingraham shortly before Christmas, referring to the two-round initial shots and the booster.

“Omicron is very, very infectious and the data are already in that both the double and triple vaccination is not protecting you from omicron,” he added.


“Now, here’s the good news,” Malone said. “The number of deaths from omicron worldwide is less than 10, to my last count.”

He further argued that omicron may well do what vaccines have not been able to fully accomplish to date: provide strong immunity.

“If you believe in a God, this looks an awful lot like a Christmas present,” Malone said, pointing out that rather than going into the deep lungs as delta and other variants do, which can lead to serious illness, omicron has shifted to the upper airway, indicating that the virus is weakening.

“So the good news with omicron is very low disease, highly infectious. It looks an awful lot to the experienced vaccinologist like a live-attenuated virus vaccine that you might design for purpose,” he contended. “This is about as good as we could possibly want right now in terms of outcomes.”

Johns Hopkins University School of Medicine professor Dr. Marty Makary commented on data coming out of Israel — where COVID is surging — showing most of the new cases in the country are among the triple-vaxed, while the least are among the unvaccinated.

“May be explained by higher rates of natural immunity among the unvaccinated, among other confounding variables,” he tweeted.

The fully vaccinated rate in Israel is comparable to the U.S. — 66 percent versus approximately 62 percent, though the Jewish state has boosted 48 percent of its population to America’s 22 percent, according to The New York Times world tracker.

All this is to say, the data suggests the unvaccinated in the U.S., as in Israel, are likely not making the workplace any less safe.

Natural immunity induced by omicron — among the vaccinated and unvaccinated — may be how this pandemic ends.

“We’re all going to get infected,” Malone told Ingraham Monday night. “Probably the only ones that won’t have some degree of symptoms from this in the United States are going to be the ones that have natural immunity. Still, a fraction of those are going to get infected.”

Monica Gandhi, an immunologist at the University of California, San Francisco, told Bloomberg, “I hope this variant creates profound immunity in the population.”

“It will hopefully end the pandemic.”

If the vaccines do not prevent the illness — as evidenced by attorney Flowers’ breakthrough case and the many, many more nationwide — why force people to get vaccinated, submit to an unrealistic testing regime or lose their jobs?

It would violate personal liberty, hurt the economy and clearly not be effective at stopping the spread of the disease.

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Randy DeSoto has written more than 2,000 articles for The Western Journal since he joined the company in 2015. He is a graduate of West Point and Regent University School of Law. He is the author of the book "We Hold These Truths" and screenwriter of the political documentary "I Want Your Money."
Randy DeSoto is the senior staff writer for The Western Journal. He wrote and was the assistant producer of the documentary film "I Want Your Money" about the perils of Big Government, comparing the presidencies of Ronald Reagan and Barack Obama. Randy is the author of the book "We Hold These Truths," which addresses how leaders have appealed to beliefs found in the Declaration of Independence at defining moments in our nation's history. He has been published in several political sites and newspapers.

Randy graduated from the United States Military Academy at West Point with a BS in political science and Regent University School of Law with a juris doctorate.
Harrisburg, Pennsylvania
Graduated dean's list from West Point
United States Military Academy at West Point, Regent University School of Law
Books Written
We Hold These Truths
Professional Memberships
Virginia and Pennsylvania state bars
Phoenix, Arizona
Languages Spoken
Topics of Expertise
Politics, Entertainment, Faith