Focus Returns to a Maskless Justice Gorsuch

He's only justice to go without one, and critics say it's insensitive to Sonia Sotomayor
By John Johnson,  Newser Staff
Posted Jan 18, 2022 10:45 AM CST
A New Court Focus: Gorsuch's Lack of Mask
Supreme Court Justice Neil Gorsuch.   (Erin Schaff/The New York Times via AP, Pool, File)

In a story about relations between justices on the Supreme Court Tuesday, veteran NPR reporter Nina Totenberg called attention to an issue that's been percolating for a while—Neil Gorsuch's decision not to wear a mask. Chief Justice John Roberts has asked all the justices to wear one amid the omicron surge, and Gorsuch was the only one to rebuff the request when the court met earlier this month. The move has prompted criticism of Gorsuch, particularly because fellow justice Sonia Sotomayor—whose seat is next to his—has diabetes, which makes her more vulnerable to COVID. Coverage:

  • Not on the bench: In the most recent arguments, Sotomayor didn't join the other eight justices on the bench and instead participated from her chambers. Seeing Gorsuch appear as the lone unmasked justice in light of this was "pretty jarring," writes Totenberg.

  • Libertarian streak: David Leonhardt called the decision "surprising" in the New York Times because justices generally treat each other with respect, even if they're polar opposites ideologically. By way of explanation, Leonhardt notes that Gorsuch "is a conservative judge with a libertarian streak who has spent his life around Republican politics." And "in conservative circles, masks have become a symbol of big-government subjugation."
  • In defense: One person defending Gorsuch's decision was one of his former clerks, conservative activist Mike Davis. "Every justice is vaccinated and boosted," he tweeted. "Don't vaccines work? We know cloth masks don't."
  • No explanations: The court hasn't offered an explanation of Gorsuch's decision to forgo a mask or on why Sotomayor didn't participate in person. This rankles Dahlia Lithwick at Slate, who writes that "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." The problem may transcend Gorsuch, writes Lithwick. "Perhaps the bigger problem is that the Supreme Court itself agrees with him, even as it declines to tell us why."
  • Unloading: Perhaps the most scathing critique of Gorsuch came from Ruth Marcus in the Washington Post, who wrote that his decision to skip the mask "goes to the heart of our fraying social fabric." Elaborating: "Actions that should be understood as minor inconveniences desirable for the greater good have somehow been transformed into intolerable incursions on liberty. Being required to wear a mask has assumed symbolic resonance far in excess of any reasonable objection."
(More Neil Gorsuch stories.)

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