Supreme Court Justice Neil Gorsuch Reportedly Refuses to Wear a Mask

As the global COVID-19 pandemic dragged into its third year, “Gorsuch” trended on Twitter on January 18 2022, primarily due to tweets claiming that Supreme Court Justice Neil Gorsuch refused to wear a mask to work — which forces fellow Justice Sonia Sotomayor to work from home in order to protect her health:

The second of the two tweets above referenced a January 18 2022 NPR article, “Supreme Court justices aren’t ‘scorpions,’ but not happy campers either.” It began with the text in the second tweet’s screenshot:

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.

NPR’s reporting was subsequently cited by Esquire.com, CNBC, and RollingStone.com. MarketWatch.com also referenced the NPR piece:

Justice Neil Gorsuch hasn’t been wearing a mask during recent proceedings, while Justice Sonia Sotomayor has opted to work remotely.

Apparently, the Supreme Court of the United States is no different than many American workplaces when it comes to conflicts about wearing masks as a COVID-19 safeguard.

Justice Neil Gorsuch hasn’t been wearing a mask during recent court proceedings, according to numerous news accounts. Slate also reported that Justices Sam Alito and Clarence Thomas have “removed their masks for extended periods.”

Meanwhile, Justice Sonia Sotomayor has chosen to participate in sessions remotely. National Public Radio noted that Sotomayor has diabetes, which would put “her at high risk for serious illness, or even death, from COVID-19.” NPR also noted that Gorsuch and Sotomayor are normally seated next to each other on the bench.

Perhaps most significant of all: The NPR story, from longtime legal-affairs correspondent Nina Totenberg, reported that Chief Justice John Roberts asked his fellow justices to mask up in consideration of Sotomayor’s health situation.

References and allusions to the Supreme Court mask rift were mentioned on legal blogs in the weeks leading up to the NPR story. On January 11 2022, LawAndCrime.com’s “‘Aerosol Argument Session’: Sotomayor, Breyer Noticeably Hear Case from Chambers Instead of Sitting Near Unmasked Gorsuch” explained that Sotomayor had been working remotely for the duration of the session — and that Gorsuch’s refusal to wear a mask was well documented:

Tuesday [January 11 2022]’s oral arguments at the Supreme Court have now lost another in-person participant, prompting speculation that the absences of two justices were a direct reaction to Justice Neil Gorsuch’s refusal to wear a mask while on the bench.

Justice Stephen Breyer, 83, and 67-year-old Justice Sonia Sotomayor (who has had Type 1 diabetes since childhood) dialed into the proceedings from their chambers. Sotomayor, once the sole justice who wore a mask on the bench, has been participating remotely since the start of the current term. Breyer, who had been present in the courtroom on Monday [January 10 2022], opted to participate remotely [the next day]. Later on in the day it was reported that Breyer actually isolated out of an “abundance of caution” after a false positive COVID test.

[…]

The Washington Post‘s Ruth Marcus also called attention to the disparity in COVID-19 precautions on the high bench in a piece entitled, “Where was Justice Neil Gorsuch’s mask?“. While reporters and lawyers must wear N95 masks, test negative for COVID-19, and socially distance, the justices themselves are left to their own choices. All but Gorsuch opted for a mask. All of the justices are vaccinated and boosted.

BallsAndStrikes.com‘s January 10 2022 “What Is Neil Gorsuch’s Deal With Masks?” addressed ongoing law-related discussions about Gorsuch refusal to wear masks in order to protect those around him, in contrast with stricter rules for lawyers and journalists:

In the first in-person oral argument since the omicron surge began, only eight justices took the bench; Justice Sonia Sotomayor, who is particularly at risk for COVID-19 complications because of her diabetes, elected to participate remotely from her chambers. Of the eight remaining justices, seven wore masks. Only one, Neil Gorsuch, decided to spend four-plus hours spewing airborne particles onto and around his elderly colleagues.

[…]

Gorsuch’s conduct contrasts starkly with the rules enforced against lawyers at the Supreme Court, who are required to wear N95 or KN95 masks throughout the building except while actually arguing their case. Journalists and lawyers also have to get a negative PCR test for COVID-19 before entering, and any lawyer who tests positive has to participate remotely. (This, incidentally, was the case on [January 7 2022], as two of the lawyers arguing against vaccine rules came down with COVID-19.) Only the justices, essential staff, the lawyers in the cases, and a handful of reporters are allowed inside the building, which remains closed to the general public. An implicit exception from the mask-wearing requirement for the justices is one that Gorsuch is apparently happy to exploit.

In addition to those initial reports, two Twitter accounts that focus on courts coverage indicated that Gorsuch alone went maskless on January 10 2022 (and that Sotomayor worked remotely):

On January 18 2022, NPR’s report about Gorsuch refusing to wear a mask and Sotomayor working remotely as a result was widely repeated in other stories and online. The claim hinged on whether Sotomayor’s remote participation was linked to Gorsuch not taking precautionary measures, an element difficult to prove definitively.

That said, legal blogs and SCOTUS news sites reported both circumstances — Gorsuch not wearing masks and Sotomayor participating remotely — in the days leading up to the NPR report. It was true Gorsuch did not wear a mask, and further true that Sotomayor worked remotely.

Update, January 19 2022: On January 19 2022, the verified Twitter account @SCOTUSblog tweeted a statement attributed to Justices Sotomayor and Gorsuch.

Although the reports asserted that Justice Roberts requested all justices wear a mask, that Gorsuch refused, and Sotomayor subsequently participated from chambers, the statement claimed that Sotomayor did not ask Gorsuch to wear a mask — a claim which was not part of the original story: