Sotomayor says she did not ask Gorsuch to mask up for Supreme Court bench

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Supreme Court Associate Justices Sonia Sotomayor and Neil Gorsuch.
Supreme Court Associate Justices Sonia Sotomayor and Neil Gorsuch. (Photo illustration: Yahoo News; photos: Erin Schaff/New York Times via AP, Pool)

Supreme Court Justices Neil Gorsuch and Sonia Sotomayor issued a rare joint statement Wednesday after NPR reported that Gorsuch refused a request by Chief Justice John Roberts to wear a mask during the current Omicron surge, forcing Sotomayor — who has diabetes and is at high risk for COVID-19 — to work remotely.

"Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us,” their statement read. “It is false. While we may sometimes disagree about the law, we are warm colleagues and friends."

According to NPR’s report, which aired on Tuesday, Roberts made the request out of respect for Sotomayor's condition. The NPR report also said Roberts’s request to the other justices came “in some form,” implying that it might have not been a direct appeal.

The report did not say that Sotomayor asked Gorsuch to wear a mask.

Roberts issued a subsequent statement Wednesday saying he “did not request Justice Gorsuch or any other Justice to wear a mask on the bench.”

According to the court's own COVID protocols, all attorneys and reporters must take a PCR test in the morning before they enter the court, and must wear N95 or KN95 masks that cover their nose and mouth at all times, except when eating or drinking, or presenting arguments.

But there are no specific rules regarding masks for justices, all of whom are fully vaccinated and have received booster shots against COVID-19.

When the Supreme Court resumed in-person oral arguments last fall, Sotomayor was the only justice to wear a mask.

But when the court returned to the bench after its holiday break earlier this month, all eight of the justices who were present wore masks — except for Gorsuch.

Sotomayor, who sits next to Gorsuch on the bench, participated remotely from her chambers.

According to NPR’s report, she did not feel safe enough to be in close proximity to people who were unmasked.

A spokeswoman for the high court did not return a request for comment on NPR's report. But according to CNN, Sotomayor will again participate remotely in arguments and conferences this week.

Members of the Supreme Court pose for a group photo.
Members of the Supreme Court pose for a group photo. (Erin Schaff/Pool via Reuters)

While Supreme Court justices are known to clash during oral arguments and especially in written opinions, they are known to be cordial to each other, maintaining, if not friendships, collegiality on the court.

The late Associate Justices Ruth Bader Ginsburg and Antonin Scalia were ideological foes, but maintained a very close personal friendship, famously attending the opera and traveling together with their families. (Scalia died in 2016, Ginsburg in 2020.)

"Reasonable minds could differ while engaging in intellectual discourse," Brian Marks, a professor at the University of New Haven, told Yahoo News. "This was no more obvious than observing their relationship."

To Marks and some longtime Supreme Court observers, the reported episode represents a breakdown in civility that could affect its legitimacy.

“The fundamental question is, has the last bastion of civility, the U.S. Supreme Court, succumbed to the incivility of the Trump years?” Marks continued. “The public health crisis has certainly exacerbated matters with interpersonal relationships difficult to forge in such an environment. The newest members of the court have been unable to integrate in a manner as other members have in the past.”

Gorsuch, who was nominated by then-President Donald Trump in 2017, is among the three newest justices who make up the court’s conservative majority.

“The justices of the U.S. Supreme Court are, to some extent, a microcosm of the United States — the members are social and political creatures,” Marks said. “While they wear the robes of judicial authority, they are human with their own foibles.”

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