Jurisprudence

I Am Embarrassed for the Supreme Court

We are two weeks into this ridiculous scandal, but don’t let the absurdity distract from the deep awfulness of what has happened.

The Supreme Court building with illustrations of virus particles surrounding it.
Photo illustration by Slate. Photos by Zach Gibson/Getty Images and NIH/NAID/IMAGE.FR/BSIP/Universal Images Group via Getty Images.

Having asked for institutional transparency for the sake of the Supreme Court’s legitimacy last week, I am now just embarrassed. In case the Supreme Court Color War of 2022 isn’t occupying 100 percent of your attention this week, let me catch you up: Justice Neil Gorsuch hasn’t been wearing a mask at oral arguments this month. Justice Sonia Sotomayor—who is high risk of complications from COVID because she has Type 1 diabetes—has been participating telephonically. This has, understandably, raised some hackles, in part because it is childish and absurd, and in part because the court failed to clarify when pressed on what the policy for masking actually was. Then, veteran Supreme Court correspondent Nina Totenberg at NPR reported Tuesday morning that Gorsuch, and the other justices, had in fact been asked by Chief Justice John Roberts to wear a mask because Sotomayor, who sits next to him at arguments, is at high risk for COVID, and he refused. Fury and shocked disbelief ensued.

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Unfortunately that is not the end but somehow just the beginning. Wednesday was like no day I can recall in the history of the court, opening as it did with a “joint statement” released by Gorsuch and Sotomayor in which the two announced that the “reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.” That clarification made no sense at all, as court watchers quickly pointed out: Totenberg’s reporting hadn’t claimed Sotomayor made the request but that Roberts had “in some form or other asked the other justices to mask up.” The NPR report had also been about masking in conference, contending that Gorsuch’s “continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.”

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Late in the afternoon on Wednesday, a statement released by the chief justice through the public information office, further clarified that “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench,” and further affirmed that Roberts would have no additional comment. In other words, everyone has clarified that Gorsuch refuses to mask, that Sotomayor cannot come to court, and that nobody has asked him to do otherwise, but also that there is nothing to see here, kindly move along.

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Thus far we’ve seen the usual partisan fracture, as NPR stands behind its story, conservatives claim that NPR is lying, and liberals claim that the issue isn’t who said what, so much as one justice refusing to make the workplace safe for a colleague. I’m going to stand by my argument of last week that whether Gorsuch is a monster or a libertarian hero is kind of unknowable without more information and also kind of irrelevant. I just wanted the court to tell us what their public health rules were, and when, and if the justices declined to abide by their own rules, to explain why. But boy, did I fail to understand how awful all this simple grant of “transparency” was going to prove to be. This week makes me long for the good old days when Justice Antonin Scalia would do crazy stuff and then defend it outright.

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In the fullness of time, we will all learn who asked whom to do what, and what people said to whom about who asked whom to what, and we can continue to fight about it with all the zeal and vigor of middle school TikTok. This is now a problem for the media to solve. But lost in the debates about who was making stuff up is what actually happened, so let’s rewind the tape. First, let’s turn to the individual whom some members of the media have inexplicably treated like a legitimate and trustworthy source of information, Mike Davis—a minor player in the push to confirm Donald Trump’s judges and, more importantly, a former clerk and current friend of Gorsuch. Davis criticized the NPR story on Fox News on Wednesday. He was quick to condemn Ruth Marcus at the Washington Post and Nina Totenberg at NPR for, he claimed, intentionally spreading misinformation to smear Gorsuch. He went on to state why Gorsuch stood alone in refusing to wear a mask in a courtroom where everyone else did so. It was to make a point:

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The Supreme Court spent a bunch of money to upgrade the air filtration system, and for months, all nine Justices sat through these oral arguments, eight of them without masks. It was not an issue. Justice Sotomayor wore a mask, the other eight didn’t. And so two Fridays ago for some reason, the science somehow changed for the two COVID [mandate] cases, and Gorsuch didn’t want to play along with that. He wasn’t going to play politics. So he continued to do what he did for the prior months and not wear his mask.

Now that is interesting. I’m going to hazard that what Davis is saying here is that Gorsuch believes that to wear a mask in January if you were not wearing one in November is to “play politics,” rather to respond directly to the evolving situation that is the coronavirus pandemic. Which means, one must also infer, that Justices like Sam Alito and Clarence Thomas are “playing politics” by wearing masks now when they didn’t do so before. This is deeply strange not just because it denies that “the science changed” around omicron (it did). It’s deeply strange in that he expressly links the change in the court’s masking policy to the public oral arguments in the vaccine-or-test cases, suggesting that the two are somehow related, rather than simply coinciding in time. If Davis is to be credited as explaining Gorsuch’s true motives, then, he really does paint everyone else on the bench as a phony who is performing public health compliance for “political” reasons. It also surely implies that Sotomayor’s decision to participate remotely is just “playing politics” as well.

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I have tried to be scrupulous about not assigning motives to Gorsuch, but Davis has taken a rather different tack. His argument, ostensibly on behalf of Gorsuch—that the decision of justices to don masks this month is all gratuitous virtue signaling about an imaginary spike in a pandemic that coincides with oral arguments on the topic—is actually one of the most damning things I’ve read all week. He isn’t saying Gorsuch wants to infect his colleague. He seems to be saying that, the science notwithstanding, masks don’t make a lick of difference and everyone aside from himself is buckling to the creeping evil of the Fauci state.

I actually believe Sotomayor and Gorsuch when they claim to be “warm colleagues and friends.” And I believe they think it’s best for the court and the country to assert loudly that their friendship and collegiality somehow preclude the need for any discussion of what we do for our friends and colleagues when they are immunocompromised in a pandemic. Usually, what we do doesn’t require waiting for them or for anyone else to ask that we take on the trivial inconvenience of a mask. Usually we just err on the side of performing solicitude because that is a minimal human effort that costs nothing. What Wednesday’s bizarre public statements confirmed for me was simply that neither Sotomayor nor the chief justice think it appropriate to ask Gorsuch to perform such solicitude—to do the thing my dentist, my grocer, and my aunt don’t have to ask me to do in public settings each day: err on the side of caution. What all the public statements and Davis’ clarification further confirmed is that Gorsuch declines to do so because his self-certainty that everyone else is misinformed trumps all else.

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I guess this is how maskgate ends. With yet more polarized public outrage. Again. Me, I see it as yet another opportunity for an institution to have modeled real collegiality and genuine mutual respect, but yet again it is instead snatching defeat out of the jaws of victory. Imagine if everyone had simply put on a mask for a few weeks, not because the science was perfect, but out of respect for a colleague they loudly claim to adore. Imagine if we weren’t fighting about who had to “ask” their colleague to do what would plainly be the respectful thing. But Gorsuch—who writes so dismissively of the risks around COVID—didn’t want to “play politics” by conceding that COVID is actually quite dangerous, especially to the elderly and those with underlying conditions. This isn’t a theoretical problem. It sits next to him at work. So, if Mike Davis is telling the truth, instead of respecting that possibility, he played politics by performing his contempt for the public health guidelines in place throughout the District of Columbia and his own place of business. Checkmate. Everyone can be a little more self-certain and pissed off.

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The saddest part here is that while whatever happened surely meant something, a performance of workplace collegiality and friendship it was not, jolly joint statements notwithstanding. The nation most certainly would have benefited from a tangible showing of that, but at the end of the day, Gorsuch still isn’t wearing a mask, and Sotomayor is still phoning in from the safety of her chambers. Call it “playing politics,” but in another time, demonstrating out of an abundance of caution some regard for your colleagues’ health—without being asked—would have merely been “leadership,” or “empathy,” or even “humility.”  That other time is long gone. We are all of us scorpions in a bottle now.

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