[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:
— 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:
— 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:
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.