[guest post by Dana]

Yesterday, a report at NPR claimed that, on behalf of Justice Sotomayor who is a diabetic, Chief Justice Roberts in some form asked the other justices to mask up while on the bench:

It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What’s more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers.

Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

Now, though, the situation had changed with the omicron surge, and according to court sources, 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. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.

[Ed. I read *this yesterday and it struck me as being awkwardly worded and wondered why an experienced journalist would do this. My guess then was that it might somehow allow her wiggle room if the story ended up not being entirely accurate.]

NPR’s veteran legal affairs correspondent Nina Totenberg authored the story:

Gorsuch refuses to mask up to protect Sotomayor; Alito still thinks he should have been CJ; the libs are beside themselves; & the conservative fissures are showing amid competition to succeed Scalia. Altogether, not a happy group at #SCOTUS. https://t.co/cx1ToTbHuQ

— Nina Totenberg (@NinaTotenberg) January 18, 2022

You can find loads of comments throughout the internet excoriating Gorsuch for refusing to heed Chief Roberts’ request. Today, Gorsuch and Sotomayor released a joint statement on the kerfuffle. Note that in the NPR report, Totenberg did not claim that Sotomayor asked Gorsuch to mask up, despite them responding as if she had. This from C-Span’s Nicole Ninh:

JUST IN #SCOTUS Statement from Justices Sotomayor & Gorsuch on masks. pic.twitter.com/lAKJoEqRlW

— Nicole Ninh (@nicninh) January 19, 2022

But Totenberg did claim that Chief Justice Roberts asked the justices to mask up while on the bench. And via Nicole Ninh, we now know that what Totenberg claimed did not happen:

JUST IN The Chief Justice Roberts chimes in on masks. Passed along from the #SCOTUS public information office. pic.twitter.com/ijqXvvWxqb

— Nicole Ninh (@nicninh) January 19, 2022

Anyway, in reading the full NPR report, the alleged mask kerfuffle appears to have been a convenient launchpad for Totenberg to lament and lambast the conservative majority of the court.

Additionally, the more I read, it’s clear that Totenberg wasn’t remotely interested in knowing the actual truth of the matter, and instead preferred to run with her false claim:

Dear ⁦@NinaTotenberg⁩:

You know your reporting is false.

The Supreme Court press office told you this.

And you didn’t even bother to confirm with them before your false reporting.

Do you have the integrity to retract your false reporting? (No.)https://t.co/eTPY3csABb

— 🇺🇸 Mike Davis 🇺🇸 (@mrddmia) January 19, 2022

As of the writing of this post, no retraction has been made by NPR and/or Totenberg. Instead, NPR says that it stands behind Nina Totenberg’s reporting.

UPDATE: NPR stands by its reporting:

On Tuesday, NPR reported that Justice Sonia Sotomayor, a longtime diabetic, had indicated to Chief Justice John Roberts that because of the omicron surge, she did not feel safe being in a room with people who are unmasked, and that the chief justice “in some form asked the other justices to mask up.”

On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask. NPR’s report did not say that she did. Then, the chief justice issued a statement saying he “did not request Justice Gorsuch or any other justice to wear a mask on the bench.” The NPR report said the chief justice’s ask to the justices had come “in some form.”

NPR stands by its reporting.

Yep. Wiggle room. Totally unsurprising.

–Dana

[guest post by Dana]

The president’s polling data from Gallup:

During his first year in office, an average of 48.9% of Americans approved of the job President Joe Biden was doing. Biden’s job approval ratings started relatively strong at 57%, but by September had plunged to 43%. A new Gallup poll finds 40% of U.S. adults approving of the job he is doing, his lowest to date.

Among post-World War II presidents elected to their first term, only Donald Trump had a lower first-year average rating, at 38.4%. Bill Clinton’s first-year average was similar to Biden’s, but all other first-year presidents averaged 57% or better.

…

Biden’s first year in office has come to an end as the anniversary of his inauguration approaches, and he begins his second year on January 20 in a much weaker political position than he began. Unlike Trump, Biden enjoyed an extended honeymoon as president largely because independents evaluated his early performance positively. Once the COVID-19 situation began to take a turn for the worse, independents began to lose faith in Biden, and the Afghanistan situation further eroded their support for him.

However, the last two Gallup polls show the president’s support among his fellow Democrats is also slipping, to around 80% from 90% or higher prior to December.

Now, it appears some Democrats have also turned on Biden, although he maintains solid support among his own party. Those Democrats who no longer approve of Biden may be frustrated by the lack of progress on Biden’s climate change and social spending plan and on voting rights legislation, if not also the state of the nation marked by rising inflation and the ongoing COVID-19 pandemic.

Given Biden’s chaotic response to the pandemic and subsequent toll on his job approval rating, the White House is ramping up in the fight against Covid-19 by providing Americans with free testing kits and N95 masks – one year into his presidency. The website to order government-provided at-home Covid-19 testing kits went live yesterday. You can order your free test kits here. I put in an order, and the process couldn’t have been any easier.

Also, Biden will be making 400 million N95 masks available to Americans beginning next week:

President Joe Biden will make 400 million highly protective N95 masks available to Americans for free at pharmacies and community health centers around the U.S., a White House official said.

The masks will start to become available late next week, and the program will be fully up and running by early February, according to the official. The White House said the free masks are the largest deployment of personal protective equipment in U.S. history.

As Omicron continues to spread, Congressional Democrats have been pushing the president to provide Americans with N95 masks:

Democrats in Congress have pushed the Biden administration to provide N95 masks to Americans for free as the highly contagious Covid omicron variant has swept the country, causing unprecedented levels of infection. Sen. Bernie Sanders, I-Vt., reintroduced legislation last week to deliver three N95 masks to every person in the U.S. The legislation has 50 co-sponsors in the House and Senate.

“Congress must demand the mass production and distribution of N95 masks, one of the most effective ways to stop the spread of the Covid virus,” Sanders said in a statement.

So, how does Biden rescue his slipping presidency at the one-year point? Here are a few suggestions:

The president needs to focus on American needs, not liberal wishes.

No, the two are not synonymous. Universal pre-K might be popular. But Americans have spent the past two years suffering from the government’s inability to meet basic needs. Public health. Price stability. Safe streets. Secure borders. Functioning supply chains. Public schools that open their doors to children.

Not all of this is the responsibility of the executive branch. But why has Biden outsourced the border issue to his overmatched vice president? Why is he nominating a progressive ideologue to the Fed at a time of spiraling inflation? How is it that he could unveil a package of crime-fighting measures last June and then basically drop the subject?

The president needs to communicate that he’s a step ahead of these problems. So far he’s been a perpetual step behind.

…

The president should remember that he won as a moderate and a unifier.

Biden’s performance thus far is sometimes compared with Jimmy Carter’s. Maybe the better source of comparison is Bill Clinton, who ran as a centrist, tilted left in his first year, saw his signature legislation blow up in Congress, suffered military humiliation in Somalia — and then figured out how to recapture the center and save his presidency.

…

Liberals have urged a floor vote for Build Back Better, as if a political kamikaze mission is going to win them a place in some future progressive pantheon. Biden would do better to move on from defeat and draft legislation with bipartisan appeal. Regulation for Big Tech is one good area. A bill that trades greater border security for citizenship for Dreamers is another. It could also help blunt G.O.P. inroads with Hispanic voters.

And what was the final suggestion to Biden? Announce that he will not run for re-election.

–Dana

My Substack post on Justice Gorsuch’s error in his concurrence in the OSHA vaccine/testing mandate case was picked up by Howard Bashman at How Appealing, by Dan Abrams’s Law & Crime site, and by Josh Blackman at Reason. Bashman’s work often gets attention in the legal community and is the best shot for getting a correction. The Law & Crime blog unfortunately garbled the analysis but raised the issue more widely. Blackman identified the source of the error, which was helpful, but for reasons I will explain in an upcoming post for paid subscribers, in my view overly minimizes the impact of the error.

People mostly accepted the analysis that it was an error. I got some half-hearted efforts to justify the quote from one law professor, who conceded in the end that his objections did not amount to much. I think I will discuss some of this in another free Substack I hope to get out tonight or tomorrow morning. The good stuff comes later this week with the analysis of the cases. For that, you’ll have to pony up! Subscribe here.