WASHINGTON – Two Supreme Court justices say a media report that they were at odds over the wearing of masks in court during the recent surge in coronavirus cases is false.
The court on Wednesday issued an unusual three-sentence statement from Justices Sonia Sotomayor and Neil Gorsuch. It read: “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.”
Sotomayor is an appointee of former President Barack Obama while Gorsuch was appointed by former President Donald Trump.
Sotomayor, who has diabetes, has been attending arguments remotely from her chambers this month during the surge of the coronavirus’ omicron variant. Her colleagues, with the exception of Gorsuch, have been wearing masks this month while hearing arguments in the courtroom.
Later Wednesday, Chief Justice John Roberts responded to inquiries about whether he had asked his colleagues to wear masks, saying in statement, “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” He said he would have no further comment.
Gorsuch has never said why he is not wearing a mask on the bench. He has not responded to a request for comment from The Associated Press.
Both statements from the justices came after NPR's longtime Supreme Court correspondent Nina Totenberg reported Tuesday on an alleged conflict between Sotomayor and Gorsuch, who normally sit next to each other during arguments at the high court.
Totenberg reported that unidentified court sources said “Sotomayor did not feel safe in close proximity to people who were unmasked” and that “Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.” She did not elaborate.
Gorsuch's decision not to wear a mask “has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone,” Totenberg reported. An NPR spokeswoman said in an email Wednesday after the justices released their statements that “NPR stands behind Nina Totenberg’s reporting.”
Following NPR’s story, CNN also reported that “a source familiar with the situation” said Sotomayor didn’t “feel comfortable sitting on the bench near colleagues who are not masked.” Neither NPR’s story nor CNN's story said Sotomayor had directly asked Gorsuch to wear a mask. The justices' statement did not say what reporting it was referencing.
Since the justices returned to hearing in-person arguments in October, Sotomayor has worn a mask during arguments at the high court while her colleagues have not. They changed their practice this month during the surge of the coronavirus' omicron variant.
All the justices have been vaccinated against the coronavirus and received a booster shot. Attorneys who argue before the justices also have to have a negative coronavirus test or argue remotely by telephone, and journalists who attend in person are also asked to have a negative test.
So far, three attorneys have had to argue by phone this month because of positive tests. The public is not currently allowed to attend arguments.