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Supreme Court Mask Flap Leaves Roberts Denying He Gave Edict (1)

Jan. 19, 2022, 10:40 PM

Chief Justice John Roberts and two other U.S. Supreme Court justices issued unusual statements Wednesday over what is for many Americans a common refrain -- whether their coworkers should wear a mask amid the Covid surge.

Following reports of friction inside the court over the issue, Justices Sonia Sotomayor and Neil Gorsuch jointly said she didn’t ask him to wear a mask during arguments. Sotomayor, 67, who has type 1 diabetes, has been taking part in arguments remotely, while Gorsuch is the only justice who isn’t wearing a mask on the bench.

A few hours later, Roberts issued his own statement saying, “I did not request Justice Gorsuch or any other justice to wear a mask on the bench.”

National Public Radio reported on Tuesday that Sotomayor felt unsafe near people who were unmasked and that Roberts, “understanding that, in some form asked the other justices to mask up.” NPR on Wednesday said it stood by its reporting.

Sotomayor and Gorsuch said Wednesday that “while we may sometimes disagree about the law, we are warm colleagues and friends.”

The public statements were rare from a branch of the federal government that operates in a culture of secrecy, with almost no leaks to the media even as the court has become ideologically more one sided with a 6-3 conservative majority. The justices argue fervently in the courtroom on such divisive issues as abortion rights and gun control but lunch together weekly and frequently profess that they remain cordial.

The court has increasingly become a focal point in U.S. politics as divisiveness has increased and that is true of the coverage of the court as well.

Fox News early Wednesday said it debunked the claim from the more liberal NPR, citing its own sources and a former Gorsuch law clerk as saying neither Roberts nor Sotomayor had asked colleagues to wear masks.

“Fact Check: 100% False. The Chief never asked his colleagues to mask up, for any reason,” tweeted Mike Davis, a former Gorsuch law clerk.

CNN also reported Sotomayor was absent from the courtroom because she’s uncomfortable with unmasked colleagues. CNN said that she expressed concerns to Roberts but didn’t ask Gorsuch directly to mask.

The court’s jurists made no mention of the situation during arguments Wednesday in a case involving federal election law and loans a senator gave his campaign. As has been the case since the court returned from its holiday recess for a Jan. 7 argument, Gorsuch was the only justice without a mask although others took them off occasionally during the arguments.

Reporters in the courtroom and lawyers arguing before the court are required to wear face coverings.

The situation is all the more odd because Gorsuch and Sotomayor sit next to each other on the Supreme Court bench, and bantered in a friendly manner while Sotomayor was the only justice masked up until the recent omicron surge. Even though Gorsuch is more conservative on issues and Sotomayor is now regarded as the most liberal on the court, the two have previously attended the same virtual events and joined together in calling for a return to civil discourse.

Last April, they lamented at an event about the nation’s collective inability to listen to one another, calling it a national security threat in a politically fractious time.

“This is the scariest of times, and the most exciting of times,” Sotomayor said in the recorded video conversation. “We had one of highest turnouts in voting the last election. Yet at the same time we see some of the cracks in our system.”

Gorsuch said that democracy is “not an automatic thing” and could crumble if Americans don’t tend to it.

“Our enemies know this, even if we don’t,” he said. “And it is no surprise that a lot of the false information spread on social media is deliberately spread by our enemies to sow disagreement internally in the country.”

(Updates with NPR standing by its reporting in fourth paragraph.)

To contact the reporters on this story:
Kimberly Robinson in Arlington at krobinson103@bloomberg.net;
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Seth Stern

© 2022 Bloomberg L.P. All rights reserved. Used with permission.

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