Supreme Court Justice Bret Kavanaugh tested positive for COVID-19 Thursday. He is fully vaccinated and is reported to not be experiencing any symptoms. Kavanaugh’s wife and daughters tested negative.

The timing for such an announcement is unfortunate given that the first Monday in October is this coming Monday, October 4, when the new session of the Supreme Court begins. He tested negative on Monday of this week before a conference with the other justices to discuss adding new cases to the docket. The reason for the test on Thursday evening was for Justice Amy Coney Barrett’s formal investiture ceremony today. The ceremony was postponed due to the coronavirus pandemic. As a precaution, Kavanaugh and his wife will not attend the ceremony.

No formal announcement of whether or not Kavanaugh’s positive test would affect the beginning of the new term on Monday has been offered as I write this. Monday will be the first time in 19 months that the justices will hear oral arguments in person because of the pandemic and COVID-19 protocols. The Supreme Court’s last session was held virtually. It may be less than ideal but there is likely no reason that Kavanaugh can’t participate on Monday virtually as he did in 2020.

A full statement was issued this morning:

On Thursday, per the Court’s regular testing protocols, Justice Kavanaugh had a routine Covid test ahead of Justice Barrett’s investiture on Friday. On Thursday evening, Justice Kavanaugh was informed that he had tested positive for Covid-19. He has no symptoms and has been fully vaccinated since January. Per current Court testing protocols, all of the Justices were tested Monday morning prior to conference, and all tested negative, including Justice Kavanaugh. Justice Kavanaugh’s wife and daughters are also fully vaccinated, and they tested negative on Thursday. As a precaution, Justice and Mrs. Kavanaugh will not attend Justice Barrett’s investiture this morning.

As mentioned above, the timing of Kavanaugh’s positive result is interesting. He participated in a three-mile charity race alongside many D.C. power players, including judges and lawmakers. Those lawmakers will be needed to vote on Biden’s infrastructure bill and the $3.5T budget reconciliation plan.

The 39th annual ACLI Capital Challenge, sponsored by the American Council of Life Insurers, drew the likes of high-profile lawmakers whose key votes will be needed in Congress on Friday as Democratic leadership has vowed to continue talks on President Biden’s $3.5 trillion budget reconciliation plan, after calling off a vote on the $1.2 trillion bipartisan infrastructure bill on Thursday.

Powerful moderate Democrat Sen. Kyrsten Sinema, Ariz., along with Sen. Shelley Moore Capito, R-W.Va., and Texas Republican Sen. John Cornyn were all seen at the race.

It will be important to protect the older justices like Stephen Breyer, who is the oldest at 83. Justices Samuel Alito and Clarence Thomas are in their 70s. Kavanaugh can participate virtually and not miss out as the new session begins. All nine justices are fully vaccinated, as of last March. Kavanaugh has been fully vaccinated since January. He is the third-youngest justice – Amy Coney Barrett is the youngest at age 49. Given his proximity to the other justices on Monday and to lawmakers during the charity race this week, it will be interesting to see if others announce COVID-19 breakthrough cases.