Two Supreme Court justices today issued a strangely unresponsive denial to a report by NPR yesterday morning, later backed by CNN, that Justice Sonia Sotomayor was skipping oral arguments because her neighbor on the bench, Justice Neil Gorsuch, refused to mask. “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false,” the justices said, per the New York Times’ Adam Liptak. “While we may sometimes disagree about the law, we are warm colleagues and friends.”
Coming from lawyers who pride themselves on precisely interpreting text, this is a dodge. NPR’s Nina Totenberg didn’t report that Sotomayor had asked anything of Gorsuch. She wrote, “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.” CNN’s Ariane de Vogue even wrote in her follow-up, which preceded the denial, “The source said she did not directly ask Gorsuch to wear a mask.” NPR this afternoon said it stood by Totenberg’s reporting.
So why did Sotomayor join a statement denying something no one alleged, proclaiming her tender friendship with a man who won’t do his high-risk colleague the courtesy of adding a layer of protection? Perhaps for the same reason that shortly after Justice Brett Kavanaugh’s confirmation hearings, during which he was accused of sexual assault, she repeatedly referred to him as part of the Court’s family. In one of those interviews, she bluntly elaborated to David Axelrod, “When you’re charged with working together for most of the remainder of your life, you have to create a relationship.”
What the public reaction has not elicited is any change in Gorsuch’s behavior. The Court heard oral arguments today in a campaign-finance case. In this stage of the pandemic, access to the Supreme Court has been restricted to a core group of regulars from major news organizations who hold “hard passes,” and cameras have never been allowed. So I checked in with Art Lien, who sketches the justices for NBC News and SCOTUSblog, among other places, and who was at the Court.
“Gorsuch, as usual, was not masked,” he told me, as his sketch above shows. “Sotomayor participated remotely from chambers.”
Update: Roberts issued a more unequivocal denial:
