At NPR, Nina Totenberg discusses supposed tensions within the Supreme Court. The opening of her discussion focuses on Justice Sotomayor’s widely reported absence from the bench during recent oral arguments. Justice Sotomayor has diabetes, and last fall she alone wore a mask on the bench. Totenberg writes:
Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.
They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.
Many media outlets have echoed Totenberg’s criticism of Justice Gorsuch. Beyond Totenberg’s previous dubious reporting (see, e.g., here and here), there were several reasons to doubt Totenberg’s account. Other sources quickly said that the chief justice made no request for the other justices to wear masks on the bench and that “the timeline for Sotomayor’s decision to go remote does not work with that claim.” More, Totenberg’s piece implausibly contends that any frustrations that Justice Alito has with the chief justice derive from Justice Alito’s supposedly thwarted hopes to be named chief justice himself back in 2005, rather than from jurisprudential differences they’ve had in their 16 years on the Court. Totenberg also makes a glaring error in stating that the Harriet Miers fiasco occurred before Chief Justice Roberts was nominated rather than after his confirmation. So Totenberg’s inferences from purportedly “reliable sources” should have been taken with a grain of salt.
Now, a joint statement from Justices Sotomayor and Gorsuch puts to rest any suggestion of tension between the two about Justice Gorsuch’s decision not to wear a mask: “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.”
Another reason to have doubted Totenberg’s account is that any demand for Justice Gorsuch to wear a mask on the bench would be difficult to understand. First, all justices are vaccinated and boosted, and evidence suggests that the Omicron variant is less severe than previous variants — including the Delta variant, dominant a few months ago when Justice Sotomayor regularly took the bench with all of her colleagues unmasked. Justice Sotomayor incorrectly claimed at oral argument in the OSHA mandate case that “Omicron is as deadly . . . as Delta” for the unvaccinated, “deaths [are] at an unprecedented amount,” and “100,000 children” are hospitalized.
Second, all justices are routinely tested, including before conferences and oral arguments. That frequent testing led to Justice Breyer’s absence from the bench during the OSHA case, as he received a false positive on a rapid test. Given the Court’s rigorous testing protocol, it is highly unlikely that any justice on the bench would have transmissible Covid.
Third, most justices who now wear masks (including the chief justice) are removing them to ask questions. If one of those justices has an extraordinarily contagious airborne virus, the horse is already out of the barn.
Fourth, after all this, if Justice Sotomayor or any other justice is concerned about catching Covid at a sparsely attended (and highly regulated) oral argument, that concern is addressed by a properly fitted N95, which prevents practically all incoming Covid transmission.
Thus, demanding that Justice Gorsuch wear a mask is irrational, unscientific, and nothing more than Covid theater. Such demands could only be expected from those looking to score cheap political points. As happens so often, the media have substituted their preferred version of the story for the facts.
UPDATE, 3:18 p.m.: Now Chief Justice Roberts has also confirmed that Totenberg’s story was in error: “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” One wonders whether retractions and apologies will be forthcoming from Totenberg, the New York Times, and the Washington Post.