Supreme Court Justices Sonia Sotomayor and Neil Gorsuch released a joint statement on Wednesday pushing back on a report that Sotomayor worked remotely because Gorsuch refused to wear a Covid-19 mask. “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false,” the statement read. “While we may sometimes disagree about the law, we are warm colleagues and friends.”
JUST IN. SCOTUS releases a short joint statement from Sonia Sotomayor and Neil Gorsuch:
"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."
— SCOTUSblog (@SCOTUSblog) January 19, 2022
But this isn’t how it went down, according to the NPR report in question. Legal affairs correspondent Nina Totenberg wrote on Tuesday that though Sotomayor, “did not feel safe in close proximity to people who were unmasked,” it was Chief Justice John Roberts, not Sotomayor herself, who put in the request for justices to mask up.
Hours after Sotomayor and Gorsuch released their joint statement on Wednesday, however, Roberts released a clarification. “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench,” it read, according to The Washington Post.
The statements stem from an NPR report that Sotomayor, who has diabetes, didn’t feel comfortable sitting next to unmasked justices as the highly transmissible Omicron variant surges, so Chief Justice John Roberts asked the court to wear masks. Gorsuch, who sits directly next to Sotomayor on the bench, reportedly refused to do so, pushing Sotomayor to do her job remotely when the court reconvened this month.
Responding to the confusion on Thursday, NPR issued a clarification — but not a correction — to their story. Totenberg on Tuesday later noted that instead of Roberts “asking” his fellows justices to wear masks, he “suggested” they do, “in some form.” Totenberg said she does not know in what form the suggestion came. “She has multiple, solid sources familiar with the inner workings of the court who told her that Roberts conveyed something to his fellow justices about Sotomayor’s concerns in the face of the omicron wave,” the outlet wrote on Thursday. “Totenberg said her NPR editors were aware of who those sources are and stood by the reporting.”
The report expounded on the growing rift inside SCOTUS, which is currently operating under a conservative supermajority that liberal justices are worried is laying waste to precedent, particularly when it comes to abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible,” Sotomayor said last month during arguments for a case that could set the stage for the court to overturn Roe v. Wade.
It isn’t just abortion rights. The court last week blocked the Biden administration’s vaccine mandate for the nation’s largest employers. The mandate would have covered around two-thirds of the nation’s workforce. The court ruled against it, 6-3. The six votes to slap it down came from the court’s six conservative justices, who argued that Covid doesn’t represent an “occupational hazard.”
Sotomayor and fellow liberals Elena Kagan and Stephen Breyer released a joint dissenting opinion in which they took aim at the majority. “When we are wise, we know enough to defer on matters like this one,” they wrote. “When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible.”
Gorsuch may not care about the health of his colleague on the court, but at least he’s consistent. He doesn’t seem to care much about the health of tens of millions of other Americans, either.
This post has been updated with statements released Wednesday by Sotomayor, Gorsuch, and Roberts.