Justice Sonia Sotomayor was the only member of the Supreme Court to wear a mask during oral arguments when the session began on Oct. 4, no doubt due to her Type 1 diabetes, which puts her at a higher risk for Covid-19. Except for Justice Neil Gorsuch, this all changed early this month when every justice on the court donned a mask.
In January, Sotomayor’s seat, which is directly next to Gorsuch, was vacant. Instead, she has engaged in proceedings from her chambers, which has raised obvious concerns. Is Sotomayor avoiding Gorsuch to avoid being implicated in the Covid case? If that’s the case, why hasn’t he shown more concern for his colleague’s health?
After the hyper-transmissible omicron strain began wreaking havoc, the court reconvened for its first argument of the year on Jan. 11; the World Health Organization called omicron cases “off the charts” that week. Gorsuch was still wearing his mask, as Sotomayor and Justice Stephen Breyer communicated via phone from their respective chambers. (Breyer remained away since he had lately received a Covid test that was a false positive.)
After Nationwide Public Radio revealed that Sotomayor “did not feel safe near people who were unmasked,” the arrangement became a national controversy. As a result, she was participating in the Court’s weekly conferences by phone and avoiding oral arguments.
According to the NPR account, Chief Justice John Roberts sympathised with Sotomayor’s concerns and “in some manner” requested that the other justices “cover-up.” Gorsuch’s refusal came as a major jolt to the court’s carefully crafted image of collegiality, making it look like not only callousness toward Sotomayor, but also a rebuke to the chief.
The justices rarely reply to media reporting directly. This time, though, Sotomayor and Gorsuch issued a joint statement promptly refuting the NPR account. “Reporting that Justice Sotomayor requested that Justice Gorsuch wear a mask is untrue,” they wrote, adding, “we are cordial colleagues and friends.” Roberts quickly responded, saying that he “did not request that Justice Gorsuch or any other Justice wear a mask on the bench.” NPR’s public editor later suggested that the storey be clarified, noting that Roberts should not have “requested” everyone to wear masks, but rather should have made a proposal along those lines.
That may excuse Gorsuch’s refusal to comply with a straightforward request, but it doesn’t explain his churlish insistence on remaining bare-faced while everyone else is donning makeup. Focusing on whether Gorsuch was asked to wear a facial covering or not misses the point: he shouldn’t have been asked in the first place.
Whether it’s doctors or grocery store clerks, no one enjoys wearing masks, but we wear them for the greater good. When a Supreme Court justice can’t make this tiny sacrifice for his immunocompromised colleague’s health, it shows how low the court’s comity standards have plummeted, regardless of how friendly Gorsuch and Sotomayor are in person.
Covid precautions are taken seriously by the Supreme Court in other cases. The justices returned hesitantly for live arguments this November after hearing cases remotely for the whole previous term. The building remains closed to the public, and attorneys appearing in court are required to wear “an N95 or KN95 mask in the Courtroom, except when presenting an argument,” with approved masks available in the lawyers’ lounge.
Consideration for coworkers should be kind, unprompted, and unrequited. Judges must be “respectful and courteous” to everyone “with whom the judge deals in an official capacity,” including fellow judges, according to the Code of Conduct for United States Judges. What could be more impolite than purposefully making a coworker uncomfortable to the point of leaving the room? Even though the high court has not formally accepted the code, the judges have stated that they follow it.
As a diabetic, Sotomayor’s life has been difficult. She was originally diagnosed at the age of seven when she practised administering her insulin injections on an orange. She’s never been one to complain about her health issues, so it’s understandable if she chose to trouble herself by staying in chambers rather than confront Gorsuch. That was a great act, and her later public comment further added to it.
Gorsuch, on the other hand, is a different storey. Even if he disagrees with the science behind the CDC’s recommendation for masking in enclosed places, wearing a mask for a couple of hours in the courtroom would bring him very minor discomfort. He, like some of the other justices, could nevertheless slip it down to ask questions of the lawyers. It’s a little inconvenience in the face of Sotomayor’s serious health problems.
Gorsuch has voted against nearly every Covid prevention action brought before his court, including the two recent federal vaccine requirement cases. He is still required to wear a mask in all interior public places, including stores, theatres, enterprises, schools, institutions of worship, restaurants, and ride-share vehicles, except in court. Perhaps appearing maskless in a setting where he is physically above the law was a small act of defiance or personal liberation for him.
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It’s comforting to know Gorsuch and Sotomayor are still colleagues and friends. But, as the saying goes, friends don’t let friends catch Covid.