Patterico's Pontifications

1/19/2022

Yeah, About that NPR Report That Justice Roberts Asked The Justices To Mask Up…(UPDATE ADDED)

Filed under: General — Dana @ 1:38 pm



[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:

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:

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:

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:

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

55 Responses to “Yeah, About that NPR Report That Justice Roberts Asked The Justices To Mask Up…(UPDATE ADDED)”

  1. Stick to the facts, ma’am. Why couldn’t someone of Totenberg’s stature and reputation actually use viable sources to confirm events…unless she didn’t want an accurate report.

    Dana (5395f9)

  2. Stick to the facts, ma’am

    “[Facts]? We ain’t got no [facts]. We don’t need no [facts]. I don’t have to show you any stinking [facts].”

    Horatio (6f8983)

  3. @1. Agreed.

    It was meant to be nebulous and inferential. Maybe her contract is up for renewal.

    DCSCA (f4c5e5)

  4. If there’s some weasely explanation for how she’s not technically wrong they need to share it because at this point it looks like she badly mis-represented whatever she was told. NPR typically does decent reporting, with a left of center bias on much of what they select to report. This is a disappointing performance on their part.

    Time123 (9f42ee)

  5. Also, her initial tweet clearly implies that the impetus was centered around justice sotomayor. An email from the desk of the CJ or some similar technicality wouldn’t support that.

    Time123 (9f42ee)

  6. Why is there even such a thing as government-funded public radio? What’s next, government-managed raisins? Oh…wait.

    https://www.raisins.org/

    norcal (d4ed1d)

  7. OT:

    Rich Lowry
    @RichLowry
    ·
    49m
    Biden now may have said more harmful things about Russia than Donald Trump ever did—dear God…

    wincing…

    Searching for transcripts….

    whembly (7e0293)

  8. Why wear a mask if you don’t care about others. Nietzsche super menche.

    asset (149569)

  9. @7 oh good lord what he say

    Time123 (9f42ee)

  10. “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” #SCOTUS

    Maybe he hinted? Or passed on a general request from Sotomayor? Or maybe not even a request to wear a mask, but to notify her if they were going to or not?

    It is clear anyway, from the words “in some form” that Nina Totenberg’s sources, at best, were second or third hand. The words “no further comment” could indicate that there is a little something to the story, except that it didn’t take place the way Nina Totenberg said, and there are no hard feelings. And it is not at all like the feelings between Justices Frankfurter and Douglas when they both had gotten not long before on the bench.

    But the big question is: Would Sotomayor have attended if all present had worn masks? Did the other seven justices wear masks because of something they had discussed? Or did they all make the decision to wear or not wear a mask independently of each other?

    Sammy Finkelman (c49738)

  11. Sammy, In your opinion does NT initial tweet seem to give the reader an accurate understanding based on what we know now?

    Time123 (9f42ee)

  12. Just terrible reporting,,,and awful journalism. That’s example 9,914 of why Twitter is garbage. It encourages people to be irresponsibly quick in their commentary…..and smug and snotty. It certainly fit her narrative….and that’s all that was needed. Slow down, take a breath…do better.

    We need to dial back the virtue signaling…..if there is one group that I don’t think we have to police, it’s SCOTUS. Yes, both sides have been worn out by this pandemic, rules, and the disruption to our collective routines. But we need to learn to put some of this in perspective.

    AJ_Liberty (ec7f74)

  13. Inside Edition covered this story.

    Sammy Finkelman (c49738)

  14. NPR stands by its reporting says Nina Totenberg:

    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.

    Dana (5395f9)

  15. Time123 (9f42ee) — 1/19/2022 @ 3:37 pm

    Sammy, In your opinion does NT initial tweet seem to give the reader an accurate understanding based on what we know now?

    We don’t know

    All she said was (of this is the tweet you are talkingg about)

    Gorsuch didn’t mask despite Sotomayor’s COVID worries, leading her to telework

    That has not been squarely denied.

    But Nina Totenberg could at least say she’s uncertain now.

    Sammy Finkelman (c49738)

  16. Now it could be that somebody at the Supreme Court made up a whole story about Justice Sotomayor being willing to attend if everybody else wore a mask.

    Sammy Finkelman (c49738)

  17. The NPR report said the chief justice’s ask to the justices had come “in some form.”

    Body language!

    nk (1d9030)

  18. Nina Totenberg’s sources (meaning at least two, but it’s even possible that one person could have heard it from the other) told her they didn’t know exactly what happened.

    “in some form” indicates a gap in knowledge.

    Or maybe instead two different versions of how the Chief Justice supposedly asked the others to mask.

    Sammy Finkelman (c49738)

  19. @12: That’s example 9,914 of why Twitter is garbage. It encourages people to be irresponsibly quick in their commentary

    that’s a ridiculous take

    this was a full fledged report, not a tweet

    totenberg is a partisan working for a partisan outlet

    this sort of crap has been her schtick since before there was a twitter and even before al gore invented the internet

    JF (e1156d)

  20. Yes, the link is the npr web page.

    In #14 Dana quoted from NPR quoting it it, and the statements from the Supreme Court do not contradict it, as they said.

    Sammy Finkelman (c49738)

  21. NPR didn’t write the Supreme Court statements. They could have flatly denied everything.

    Sammy Finkelman (c49738)

  22. Roberts could just simply have polled the other justices about their masking intentions and reported back to Sotomayor

    That’s not really asking the other justices to mask up.

    Sammy Finkelman (c49738)

  23. C’mon. Really. If the conservatives had it in for Sotomayor, why would they wait until Trump was out of office before making the play?

    Kevin M (ab1c11)

  24. Why is there even such a thing as government-funded public radio? What’s next, government-managed raisins? Oh…wait.

    I continually expect the formation of a National Lawn-mowing and Snow-shoveling Corps. Just think of all the unmet needs!

    Kevin M (ab1c11)

  25. Now it could be that somebody at the Supreme Court made up a whole story about Justice Sotomayor being willing to attend if everybody else wore a mask.

    Perhaps, but it could also be that she had no intention of attending and that led to Gorsuch not wanting to bother, given that her protection did not depend on a mask.

    Kevin M (ab1c11)

  26. It’s nice to see that they are all on the same page that no one said the specific phrase, “Neil, I’d like you to wear a mask on the bench.” to Neil Gorsuch.

    Nic (896fdf)

  27. I did not read the whole NPR article. Did Nina indicate in some form that Roberts keeps a tank of mutated perch with laser beams on their heads?

    nk (1d9030)

  28. #27 Careful – We don’t want to alert Putin and Xi.

    Jim Miller (edcec1)

  29. Careful – We don’t want to alert Putin and Xi.

    They have a dreadful sense of one-upmanship

    Kevin M (ab1c11)

  30. Sotomayor (or her staff) were probably the source for the story.

    Rip Murdock (379be7)

  31. Totenberg should have at the very least investigated for the Anita Hill leak, and hauled before a Senate committee and forced to testify-better yet a grand jury. There is no reporter’s privilege not to testify in the law.

    Rip Murdock (379be7)

  32. 30 Rip Murdock (379be7) — 1/19/2022 @ 7:03 pm

    Sotomayor (or her staff) were probably the source for the story

    I think it’s from some other chambers. Someone who doesn’t like Gorsuch, or maybe, semi-paradoxically, doesn’t like wearing a mask (and thinks it was all for nothing because Sotomayor didn’t attend in person). But more than one person.

    Sammy Finkelman (c49738)

  33. Maybe could be Sotomayor’s people, but they’d know more about what her thinking was.

    Sammy Finkelman (c49738)

  34. “this was a full fledged report, not a tweet”

    My bad I missed the first link and assumed the posted tweet drew the attention. It is certainly worse being in an article…an article that should demand more careful editting. Though after reading the article, it is certainly aimed at a specific audience that wants a partisan shovel full. I don’t read her and just vaguely remember Totenberg from TV round tables. My suspicion is that conservatives are not a big percentage of her readership. It doesn’t excuse it…especially for someone who claims to be a journalist….but it’s where we’re at. If you are seen as being against Roe, then it’s easy for NT to extrapolate that to every other evil. We do see it on both sides…and even by partisan commenters at this site……

    AJ_Liberty (3cb02f)

  35. Is this what a Confederacy of Dunces actually looks like?

    Holy smokes! Defending or justifying a Fourth Estate boondoggle like this is incredible.

    BuDuh (4a7846)

  36. Nothing is worse than dementia joe xiden

    mg (8cbc69)

  37. Nothing is worse than dementia joe xiden

    Au contraire, mon frère…those who knew he had dementia, and voted for him anyhow are much worse

    Horatio (6f8983)

  38. Sammy, I think you’re being way too literal.

    The presentation of the material strongly implies that a request was made out of concern for Justice Sotomayor and the Justice Gorsuch, despite sitting next to her, refused. It further implies that this is the reason she participated remotely and that there is some bad blood between them.

    I’m perfectly willing to admit that a message about masks was delivered in some form. But that doesn’t come close to supporting the thrust of the article.

    Time123 (9f42ee)

  39. 11. 15. The article on the npr web page is not so wrong, if it is wrong at all, but the tweet by Nina Totenberg is completely wrong.

    https://twitter.com/NinaTotenberg/status/1483386182440566785

    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.

    Gorsuch did not refuse because he was not asked; while it’s possible Alito thinks he could have or should have been Chief Justice, there is nothing to suppose this is something preoccupying him; and nothing to back up (besides the fact of a leak) that anyone is even mildly upset about Gorsuch not wearing a mask; the competition to be the successor to Scalia is mostly in her imagination; and the basic theme that the Supreme Court justices are unhappy with each other probably would rate three or four Pinocchios. (she has the conservatives also upset with each other)

    Sammy Finkelman (c49738)

  40. The part of the npr web page report that I am most chary of is the claim that Sotomayor would have attended the oral arguments and the weekly conference if Gorsuch had worn a mask. That has not been conformed by the Supreme Court’s official statements.

    The npr report is also implicitly critical of Gorsuch for not doing so.

    Sammy Finkelman (c49738)

  41. Despite the fact that the lovely Mrs Reines’ — just because Nina Reines hasn’t respected her husband enough to have taken his last name does not mean that I will show him the same disrespect — report has been discredited, The Philadelphia Inquirer’s Helen Ubiñas Dunne has run with it anyway.

    After NPR’s longtime Supreme Court reporter Nina Totenberg highlighted his behavior in a story this week, there was a lot of righteous outrage directed at Gorsuch.

    On social media, people called him all kinds of names: selfish, childish, petty. No argument here, and I suspect the pointed backlash spoke more to the sheer exhaustion from people tired of vaccine opponents and anti-maskers as the pandemic stretches into a third year. . . . .

    In an opinion piece for CNN, Kara Alaimo wrote that Gorsuch’s behavior was a shocking display of male entitlement.

    Agreed, and let’s take that a step further: It’s white male entitlement, because as it happens, Sotomayor, a fellow Puerto Rican, is the only woman of color on the bench. And, whew, the optics!

    But while all eyes and ire seemed to land on Gorsuch, mine lingered longer on the other justices, because from the hallowed grounds of the White House to the more common spaces of our everyday workplaces, bad behavior can’t exist without enablers, not easily anyway. Even when — perhaps especially when — the enabling comes in the form of silence or inaction. . . . .

    That problematic colleague at your office couldn’t continue to be a problem if the enablers didn’t dismiss or downplay their behavior.

    And as such, Gorsuch wouldn’t be able to act so coldheartedly without the implied or explicit consent of his fellow justices, including Sotomayor apparently, who — if that statement is any indication — gave him a pass to keep the peace. (But then the burdened are often expected to set aside their own comfort and safety.)

    According to Mrs Dunne, it’s not just the guy who refuses to wear a diaper on his face who’s boorish, but everyone else who fails to wag their fingers and scold him is as well. Mrs Dunne’s first name really ought to be Karen.

    The libertarian, but not Libertarian, Dana (b9a1cd)

  42. Sammy, That’s pretty close to how I see it. Terrible reporting by NPR and inexcusable by NT.

    Time123 (9f42ee)

  43. Despite the fact that the lovely Mrs Reines’ — just because Nina Reines hasn’t respected her husband enough to have taken his last name does not mean that I will show him the same disrespect

    1955 called to ask how you’re doing.

    Time123 (9f42ee)

  44. hasn’t respected her husband enough to have taken his last name

    As the Greeks would say, and they do say it, they might have “evened it up with the dowry”.

    nk (1d9030)

  45. Mr 123 wrote:

    1955 called to ask how you’re doing.

    You’re two years too late; I was born in 1953.

    The libertarian, but not Libertarian, Dana (b9a1cd)

  46. Clearly Mr. Reines has no respect for his wife either.

    Leviticus (d0e7f3)

  47. They’re probably bound together in a joyless disrespectful marriage by some irrational tendency like Catholicism.

    Leviticus (d0e7f3)

  48. There was also this (which I think was only online)

    https://www.nytimes.com/2022/01/14/briefing/supreme-court-covid-mask-mandate.html

    Gorsuch had to know that his masklessness could make other justices uncomfortable, including the 83-year-old Stephen Breyer and the 67-year-old Sotomayor, who has diabetes, a Covid risk factor. Sotomayor sits next to Gorsuch on the bench and, notably, chose not to attend Friday’s argument in person. She participated remotely, from her chambers.

    When Ruth Marcus of The Washington Post asked a Supreme Court spokesperson whether Sotomayor had done so because Gorsuch was maskless, Marcus got no response.

    Also:

    … the Supreme Court tells lawyers and reporters in the courtroom to wear medical masks.

    It’s not cvlear to me f he means the Supreme Court tells them to wear that kind of mask, or twells those who wear masks to wear that kind, and it is not clear from that if it requires masks at all

    Sammy Finkelman (c49738)

  49. per https://www.supremecourt.gov/announcements/Winter%202022%20argument%20COVID%20protocols.pdf the supreme court has the following requirements for attorneys participating in oral arguments:

    * mandatory pcr test the morning before the argument; positive-testing attorneys must argue remotely
    * attorneys must wear n95 or kn95 masks in the courtroom, *except when presenting argument*, and must wear masks at all times within the court building.

    i don’t know how the two last points are reconciled.

    aphrael (4c4719)

  50. It is refreshing to see that the court doesn’t discriminate against the naturally immune.

    BuDuh (4a7846)

  51. NPR reporting on Supreme Court mask controversy merits clarification
    ……..
    …….. Totenberg said she has multiple, solid sources familiar with the inner workings of the court who told her that Roberts conveyed something to his fellow justices about Sotomayor’s concerns in the face of the omicron wave. Totenberg said her NPR editors were aware of who those sources are and stood by the reporting.

    Totenberg and her editors should have chosen a word other than “asked.”……
    ……….
    No one has challenged the broader focus of Totenberg’s original story, which asserts that the justices in general are not getting along well. The controversy over the anecdotal lead, which was intended to be illustrative, has overwhelmed the uncontested premise of the story.
    ………
    A tempest in a teapot.

    Rip Murdock (d2a2a8)

  52. Nina Totenberg disagrees with the Public editor” at NPR. (By the way this is only about the written report published by NPR, not her tweet (which NPR is not responsible for and not standing by, although reporters have in places been fired for tweets) nor, probably anything she may have said oirally on NPR,PBS or anywhere else.)

    https://www.newser.com/story/315945/nprs-nina-totenberg-fires-back-at-public-editor.html

    “She can write any goddamn thing she wants, whether or not I think it’s true,” Totenberg told The Daily Beast on Thursday night. “She’s not clarifying anything!”

    Totenberg laughed, and added: “I haven’t even looked at it, and I don’t care to look at it because I report to the news division, she does not report to the news division.”

    The public editor said the word asked should be chaned to suggested

    https://www.npr.org/sections/publiceditor/2022/01/20/1074540207/npr-reporting-on-supreme-court-mask-controversy-merits-clarification

    But that could also be too strong. Because we don’t know what, if anything, Roberts did. He could have merely polled the other justices.

    Again, we have no idea whether or not it is true that, but for Gorsuch not wearing a mask, Sotomayor would have been present.

    Sammy Finkelman (02a146)

  53. aphrael (4c4719) — 1/20/2022 @ 1:40 pm

    i don’t know how the two last points are reconciled.

    Because masks can muffle speech, the attorneys don’t have to wear masks when standing before the court. When merely in the building, they must wear masks.

    It is, of course, always in order for any justice to speak, and Roberts is not their boss.

    Sammy Finkelman (02a146)

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