Report: Gorsuch declines to wear mask on bench despite worries of high-risk Sotomayor

Erin Schaff/The New York Times via AP, Pool

There has to be more to this story. Whatever Gorsuch’s feelings are about masks, it’s all but unimaginable that he’d refuse to wear one as a simple courtesy to ease the anxiety of a colleague with special health challenges.

But if it’s true then Steve Vladeck is right: “That Justice Sotomayor is choosing to participate in #SCOTUS arguments remotely because Justice Gorsuch (and *only* Justice Gorsuch) refuses to wear a mask on the bench is such a perfect microcosm of how millions of Americans are experiencing the pandemic—from both perspectives.”

SCOTUS is back to holding oral arguments in person instead of remotely with the exception of Sonia Sotomayor, who dialed into the hearing on Biden’s vaccine mandate instead of taking her place on the bench. How come? Nina Totenberg of NPR hears it’s because her neighbor won’t mask up:

Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

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.

I just can’t believe it. Refusing to wear a mask during hearings and at the weekly conference would sideline her from all Court business conducted jointly by the justices. That’s a heavy burden to place on a co-worker in order to spare yourself from a minor inconvenience.

It’d be no answer either to say “cloth masks don’t work!” N95s do. Anf they work much better when both people are wearing them instead of just one:

Donning an N95 around Sotomayor would do more than just reassure her psychologically. It really might prevent transmission.

Jonathan Adler noticed the weasel words in the highlighted bit above and is rightly curious:

Based upon this report, it seems like Justice Gorsuch is acting like an uncourteous cad, but is all what it seems? The particular wording of Totenberg’s report (italicized above) caught my eye. What does it mean that the Chief Justice asked the other justices “in some form”? Totenberg is a careful reporter, so this extra language is there for a reason. Just as reporters are often very careful about how they characterize anonymous sources, this qualifying language is serving some purpose. At the least, it suggests that there was not a formal, direct request from the Chief to all of the other justices, but something less than that (or that is all Totenberg’s source was willing to say.

Former Gorsuch clerk Mike Davis says it’s nonsense, that Roberts never asked the other justices to mask up. Okay, but one would assume that if masking was that big of a deal to Sotomayor, she would have appealed to Gorsuch personally to wear one. (He sits next to her on the bench.) It can’t be that he was unaware of her request — assuming there ever was a request.

I wonder if NPR has cause and effect backwards. That is, maybe Gorsuch offered to wear a mask for Sotomayor’s benefit but she concluded that there’d still be too much risk to her in being around the other justices during Omicron, a variant that’s easily capable of puncturing vaccine immunity and flimsy cloth masks. Possibly she told her colleagues that she’d be working remotely until further notice, at which point Gorsuch decided there was no longer a need to mask up while on the bench. The most vulnerable person in their ranks was no longer present.

Although that would raise the question: Shouldn’t he be masking anyway to protect 83-year-old Stephen Breyer?

By the way, is it even true that everyone except him has masked up? That’s not how it looks in this recent courtroom sketch:

Maybe Thomas and Alito were momentarily unmasked because they were questioning the lawyer at that moment and then put their masks back on when they were done, whereas Gorsuch is staying maskless throughout the hearing.

He is a libertarian. If anyone’s going to flout the relevant authority’s COVID rules, it’s him.

Exit question: If the NPR report is true, why didn’t Roberts ask Gorsuch to work remotely so that Sotomayor could participate on the bench? He’s the one who has a problem with the Court’s mask policy, after all. Allegedly.