It’s getting harder for the Supreme Court to maintain the illusion of collegiality, and the acrimony is not just coming in the form of bitter dissents or digs at oral argument.
Nina Totenberg, as well sourced a reporter on the Supreme Court as exists on this Earth, reports that it was no coincidence that Justice Sonia Sotomayor called in from her chambers for oral argument on the Biden administration’s vaccine-or-test mandate while her bench neighbor Neil Gorsuch went maskless.
Sotomayor was diagnosed with diabetes as a child, a risk factor for severe illness from COVID-19. Before year’s end, she’d been attending oral arguments in person along with the rest of the justices, but Totenberg says that when Omicron surged, making breakthrough infections likelier, 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. They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench.”
Gorsuch has remained barefaced since, forcing Sotomayor to keep joining meetings remotely. Totenberg, who politely refers to Gorsuch as “a prickly justice,” traces it to the general collapse of comity among the justices, including on substantive matters.
Until now, reporters asking the Court what was going on with Gorsuch’s face (and Sotomayor’s absence) had gotten nowhere. Dahlia Lithwick wrote that it was emblematic of the fact that “the justices get to do whatever they want, whenever they want to, and that they do so without any obligation to explain why.”
It’s also a symptom of the ways in which the culture wars have infected the Court’s chambers, which you could hear in the vaccine oral argument Sotomayor skipped and in her conservative colleagues’ opinions. Gorsuch’s own former clerk, Mike Davis, underscored the own-the-libs mentality, regardless of the data on Omicron’s transmissibility, by tweeting about the mask affair, “Every justice is vaccinated and boosted. Don’t vaccines work? We know cloth masks don’t.”
Who said anything about a cloth mask? We have to rely on illustrations and limited verbal accounts for what happens inside the Court, but the former seem to show Roberts, Amy Coney Barrett, and the Democratic appointees wearing the more effective respirators while listening to arguments against vaccine-or-test requirements in the workplace. Samuel Alito and Clarence Thomas are maskless. When it comes to a lack of consideration for the real-world impact of their actions, the conservative justices start at work.
