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The Supreme Court Covid mask controversy is missing the point

Why isn't Supreme Court Justice Neil Gorsuch making a small sacrifice for the health of his immunocompromised colleague?
Image: Justices Elena Kagan, Sonia Sotomayor
Supreme Court Justice Sonia Sotomayor pays her respects to the late Sen. Harry Reid as he lies in state at the U.S. Capitol Rotunda on Jan. 12.Oliver Contreras / Pool via Getty Images file

When the Supreme Court term opened on Oct. 4, Justice Sonia Sotomayor was the only member of the court to wear a mask during oral argument, no doubt because her Type 1 diabetes put her at greater risk for Covid-19. That changed dramatically earlier this month, when every justice on the bench donned a mask — with the exception of Justice Neil Gorsuch.

It’s good to know that Gorsuch and Sotomayor remain colleagues and warm friends. But let it be said: Friends don’t let friends risk catching Covid.

Sotomayor’s seat, immediately next to Gorsuch's, has been empty in January. She has instead participated in hearings remotely from her chambers, which raises immediate questions. Is Sotomayor staying away from Gorsuch to protect herself from possible Covid exposure? And if so, why hasn’t he been more considerate of his colleague’s health?

The court reconvened for its first argument of the year on Jan. 11 after the hyper-transmissible omicron variant started wreaking havoc; that week the World Health Organization called omicron cases “off the charts.” Gorsuch was still maskless, while Sotomayor and Justice Stephen Breyer phoned in from their chambers. (Breyer stayed away because he had recently gotten a Covid test that turned out to be a false positive.)

The arrangement turned into a national controversy after National Public Radio reported that Sotomayor “did not feel safe in close proximity to people who were unmasked,” and was therefore participating in the court’s weekly conferences by telephone, as well as staying away from oral arguments.

The NPR story added that Chief Justice John Roberts was sympathetic to Sotomayor’s concern and “in some form” asked the other justices to “mask up.” That was a serious jolt to the court’s carefully honed image of collegiality, making Gorsuch’s refusal look not only like callousness toward Sotomayor but also a rebuff to the chief.

The justices seldom respond directly to media reports. But this time, Sotomayor and Gorsuch quickly issued a joint statement denying the NPR story. "Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask ... is false,” they said, adding, “we are warm colleagues and friends.” Roberts soon issued his own statement, explaining that he “did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” NPR’s public editor later recommended a clarification, saying that the story should not have reported that Roberts “asked” everyone to wear masks but rather that he made a suggestion along those lines.

That may get Gorsuch off the hook for refusing a direct request, but it does not explain his churlish insistence on staying barefaced when everyone around him was masking up. In fact, the focus on whether Gorsuch was or wasn’t asked to wear a face covering misses the point: He shouldn’t have had to be asked in the first place.

No one likes wearing masks, whether it’s doctors or grocery store clerks, but we wear them out of a commitment to the greater good. When a Supreme Court justice can’t make this small sacrifice for the health of his immunocompromised colleague, it underscores how low the standards of comity on the high court may have sunk, regardless of how chummy Gorsuch and Sotomayor actually remain.

Elsewhere, the Supreme Court takes Covid precautions seriously. After hearing cases remotely for the entire previous term, the justices returned cautiously for live arguments last fall. The building is still closed to visitors, and attorneys appearing before the court are given very specific instructions to wear “an N95 or KN95 mask in the Courtroom, except when presenting argument,” with the approved masks provided in the lawyers’ lounge.

Consideration for colleagues should be gracious, voluntary and unbidden. The Code of Conduct for United States Judges says as much, calling upon judges to be “respectful and courteous” toward everyone “with whom the judge deals in an official capacity,” including fellow judges. What could be more discourteous than knowingly causing a coworker so much discomfort that she leaves the room? Although the high court has not officially adopted the code, the justices have said they adhere to it.

Sotomayor’s life as a diabetic has not been easy. She was first diagnosed at age 7, when she learned how to administer her own insulin injections by practicing on an orange. She has never been known to complain about her health challenges, so it is understandable if she chose to inconvenience herself by remaining in chambers rather than put Gorsuch on the spot. That was a classy move, made even classier by her subsequent public statement.

The same cannot be said of Gorsuch. Even if he rejects the science behind the Centers for Disease Control and Prevention’s endorsement of masking in closed spaces, it would cause him at most slight discomfort to wear a mask for a couple of hours in the courtroom. He could still slip it down to ask questions of the lawyers, as do some of the other justices. It’s a small imposition for the sake of allaying Sotomayor’s very real health issues.

Gorsuch has voted against almost every Covid prevention measure that has come before the court, including the two recent federal vaccine mandate cases. Other than at the court, he is still subject to the District of Columbia’s regulations requiring masks in all indoor public locations, including stores, theaters, businesses, schools, houses of worship, restaurants and ride share vehicles. Perhaps it was his small act of resistance or personal liberation to appear maskless in a venue where he is literally above the law.

It’s good to know that Gorsuch and Sotomayor remain colleagues and warm friends. But let it be said: Friends don’t let friends risk catching Covid.