We are now six days into mask-mania at the U.S. Supreme Court. It all started during last Friday’s oral arguments in the vaccine-or-test mandate cases when Justice Neil Gorsuch was reportedly the only justice not masking throughout the session, though evidently Justices Sam Alito and Clarence Thomas removed their masks for extended periods. The masking protocol at the high court has long been a bit haphazard: When the justices began to hear cases in person again in October, Justice Sonia Sotomayor was the only justice wearing a mask. But the other justices all began to mask last Friday, the first sitting since the omicron surge, after more guidance from the Centers for Disease Control and Prevention. Likely not by coincidence, Sotomayor participated telephonically last Friday. (She has diabetes, which is a comorbidity factor with COVID, even the milder forms.) The Supreme Court’s spokeswoman also confirmed to Slate that Sotomayor then participated remotely in conference, where only the justices are present.
The pattern has continued with slight modifications since then: On Monday, Gorsuch was the only one to take the bench without a mask according to the AP’s Mark Sherman, and Sotomayor again participated remotely. Gorsuch opted not to wear a mask for oral arguments again on Tuesday when both Justices Sonia Sotomayor and Stephen Breyer dialed in for the sessions. Breyer had a false positive test and was staying home out of an abundance of caution, but on Wednesday, we learned that Sotomayor would stay home all week.
All of this has launched a high-octane debate over whether Gorsuch is a monster or a hero of liberty. But all that strikes me as not quite the point. The point is not what Gorsuch’s lack of masking means; the point is that the justices get to do whatever they want, whenever they want to, and that they do so without any obligation to explain why. The real problem with the court’s masks-optional policy? It reflects the court’s much larger rules-optional policy on everything pertaining to judicial conduct.
Last Friday, the Washington Post’s Ruth Marcus published a scorching critique of Gorsuch’s decision to “break with his colleagues and disdain the mask,” connecting it to his libertarian record, his comments in the vaccine arguments about coercive government attempts to “control” the citizenry, and the breakdown of institutional norms that mean that the trivial inconvenience of wearing a mask out of respect for a high-risk colleague (Sotomayor) represents “intolerable incursions on liberty.”
Yvette Borja noted that given that Washington Mayor Muriel Bowser reinstated an indoor mask mandate for all public indoor spaces, “Gorsuch would be required to wear one basically anywhere else in D.C., from the grocery store to the pharmacy to his next speaking engagement at the Trump International Hotel,” even if he does not have to wear one on the bench. Like Marcus, she assumed that he is motivated by the symbolic value of owning the libs. “By publicly refusing to do so, Gorsuch aligns himself with some of the pandemic’s most insufferable people: the trolling culture warriors who are proud not to give a shit about anyone but themselves,” she wrote.
To be sure, we have heard from absolutely none of the justices themselves on the subject. The court’s spokeswoman has confirmed that Sotomayor is participating remotely but will not say why. The office did confirm that Breyer phoned into arguments because of his COVID test results. But the public information office will not explain why Gorsuch feels no need to mask around several colleagues who are high risk by virtue of their co-occurring conditions or their ages—despite the court’s express rule providing that everyone else who attends every session must wear at least N95 or KN95 masks.
Plenty of speculation is bouncing around Twitter, where people are quick to pile on with the inference that Gorsuch just doesn’t care about exposing his colleagues to a lethal disease and that this is a liberal/conservative mask split. As legal reporter Cristian Farias noted: “A couple of years ago, Neil Gorsuch wrote a whole book lamenting the loss of civility in public life. In it, he quotes a rule George Washington is said to have learned as a child: ‘Bedew no man’s face with your spittle, by approaching too near him when you speak.’ ” One of Gorsuch’s defenders, Mike Davis, a former law clerk of the justice’s who serves as founder and president of the Article III Project, a group that worked to support the confirmation of Trump’s judicial nominees, tweeted: “Every justice is vaccinated and boosted. Don’t vaccines work? We know cloth masks don’t.” This is almost as willfully dumb as the comments of Ohio’s Solicitor General Benjamin Flowers, who joined arguments Friday telephonically because he had COVID, while insisting that vaccines probably don’t stop spread or transmission, since he himself had been vaccinated.
But the hyperfocus on Gorsuch’s unknown motivations strikes me as nearly as much of a distraction as the hyperfocus on who said incorrect things at oral argument, and who sought changes in official transcripts about what we thought we heard. Justices say mistaken things at oral argument all the time, especially when they are hearing fast-tracked cases. The big lesson here isn’t about verbal errors at argument or Gorsuch’s lack of concern for his colleagues. The reason his noncompliance with the court’s formal mask rule is news is because it is yet another example of the justices having rules but refusing to apply them to themselves. That’s the real issue with regard to masks, just as it is to judicial ethics, and that’s the reason why this debacle is damaging the court’s public standing. Several smart lawyers have written to ask me why Chief Justice John Roberts cannot simply order his colleagues to follow the same mask requirements imposed on everyone else. The short answer is that he cannot order his colleagues to do anything that falls within the realm of ethical behavior.
For decades, court reformers—and most recently President Joe Biden’s commission on court reform—have noted that the court’s financial and ethical rules are purely advisory, that nobody needs to follow them and that the justices will not enforce them against one another. When it comes to adopting a set of rules governing how the nine justices conduct themselves when giving speeches, or engaging in public activities, each of the nine is a law unto themselves. Efforts to remedy that, in the interest of making the court more accountable and also more legitimate, are persistently rebuffed. To extend Marcus’ analysis about Gorsuch, nobody is the boss of Gorsuch because nobody is the boss of any of the justices.
Two short weeks ago, in his annual state of the judiciary report, Roberts flicked obliquely at the connection between public confidence in the court and the need for judicial independence. Unsurprisingly, and in keeping with much of the lawyerly discourse around judicial behavior, he urged that public confidence in the court demands judicial independence at all costs. Judicial independence, in other words, is an end in itself, and public regard for the institution is, at best, a second-order concern. Roberts thus used the national decline in confidence in the courts and the existence of financial misconduct and workplace “incivility and disrespect” on the federal bench to insist that the courts themselves could handle it, and to decry efforts to exert “inappropriate political influence” on the courts’ procedures. Instead, he urged that “decisional independence is essential to due process, promoting impartial decision-making, free from political or other extraneous influence.” Roberts cited Chief Justice William Howard Taft, saying that he “was prescient in recognizing the need for the Judiciary to manage its internal affairs, both to promote informed administration and to ensure independence of the Branch.” Even the most obvious and necessary efforts to regulate judicial conduct are forever deemed a threat to the Supreme Court justices’ and their independence.
When Ruth Marcus wrote last week about the way in which Gorsuch’s refusal to don a mask “goes to the heart of our fraying social fabric,” the issue was not just that Gorsuch has arrogated to himself the authority to determine, set, and model public health behavior. That is very much in keeping with the mood of the court and the mood of the country. The real issue is that the court as an institution has put a mask rule into effect, has allowed justices to evade it, has failed to offer any coherent explanation for why one justice has been exempted, and has thus launched another toxic and possibly unnecessary public debate. The court hasn’t just declined to be transparent about the application of its own rules to itself; it also feels no obligation to explain the breach to anyone. Into that silence falls institutional criticism that further erodes public confidence.
One way to describe this is “judicial independence”—John Roberts’ pledge to the nation that the justices answer to nobody but are driven by the imperative they take upon themselves, in the words of Taft, “the duty to remove, as far as possible, grounds for just criticism of our judicial system.” But what happens when the justices, with ever-increasing frequency, decline to evince concern for the public’s worries and uncertainties about the judicial system? What happens when day after day of raging debate over one justice’s refusal to adhere to a court rule is met with stony silence by the court? If the justices have no obligation to be ethical, or even civil, around a pandemic that has killed more than 800,000 Americans, do they at least have the burden to explain? Evidently not.
The other word for this behavior is “judicial immunity,” an immunity that requires no explanation. The court—while debating the necessity of COVID mitigation efforts—declined to enforce its own COVID mitigation efforts. Then, in the face of politically polarized reaction, the court declined to tell us why. Justices will be quick to blame the media for merely reporting on their behavior—Justice Sam Alito did so again during the vaccine arguments themselves. But when the media asks for clarity, the court fails to answer. Perhaps the problem here transcends Gorsuch, who refuses to accept that he answers to anyone. Perhaps the bigger problem is that the Supreme Court itself agrees with him, even as it declines to tell us why.