The Supreme Court heard oral arguments two weeks ago in cases related to the Biden administration’s vaccination policies. As important as the legal disputes were, it wasn’t long before observers noticed something unusual on the dais.
Because of the pandemic, the high court requires lawyers to wear mask protection. The same is true of journalists covering the arguments. What’s more, during the Jan. 7 proceedings, seven of the nine sitting justices were seen wearing masks. The exceptions were Justice Sonia Sotomayor, who participated in the oral arguments virtually, and Justice Neil Gorsuch, who participated in person without a mask.
Perhaps Sotomayor, who has diabetes and is at greater risk from Covid-19, steered clear of the chamber because of Gorsuch’s decision?
NPR’s Nina Totenberg reported yesterday:
[A]ccording 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.
The report, which has not been independently verified by MSNBC or NBC News, added that Gorsuch “has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court.”
This is certainly consistent with other reporting from recent years. In 2017, just months into Gorsuch’s Supreme Court tenure, CNN reported that Donald Trump’s first appointee had “shaken relations at the high court” and created “personal tensions.”
That said, putting Sotomayor at personal risk during a pandemic would be a rather extreme example of Gorsuch’s arrogant indifference.
So, is the NPR report correct? The court issued a written statement this morning that read in its entirety, “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.”
As Supreme Court statements go, this one was … odd.
The justices appear to have denied a claim that no one made. The NPR report, for example, never said that Sotomayor asked Gorsuch to wear a mask. Rather, Totenberg reported that Roberts asked justices to mask up, and each of them obliged — except Gorsuch.
What’s more, CNN reported that Sotomayor expressed concerns to the chief justice, but never directly asked Gorsuch to wear mask protection. I can appreciate why it may seem like I’m splitting hairs, but if anyone in the country can appreciate the importance of specific textual analysis, it’s members of the Supreme Court. What we’re left with is a series of reported assertions: Roberts asked justices to wear masks, Gorsuch didn’t, and Sotomayor has felt the need to keep her distance as a result of Gorsuch’s decisions. Today’s written statement from the court doesn’t challenge any of these reported claims. Update: The Supreme Court released another written statement this afternoon, this time from Chief Justice John Roberts, which said, “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” Unlike the other statement, this one actually contradicts NPR’s reporting.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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