Neil Gorsuch defied a request from Chief Justice John Roberts to wear a mask out of respect for Sonia Sotomayor, a report says

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Associate Justice Neil Gorsuch
Justice Neil Gorsuch.Erin Schaff-Pool/Getty Images
  • Sonia Sotomayor attended oral arguments remotely after Neil Gorsuch didn't wear a mask, NPR said.

  • Chief Justice John Roberts asked the court to wear masks on Sotomayor's behalf, the report said.

  • All of the justices are fully vaccinated and boosted against COVID-19.

Justice Sonia Sotomayor, who has diabetes and is at a higher risk of severe illness from COVID-19, has been participating in Supreme Court oral arguments remotely from her private chambers after Justice Neil Gorsuch refused to wear a mask, NPR's Nina Totenberg reported on Tuesday.

Sotomayor hasn't taken the bench this year amid the nationwide surge in COVID-19 cases driven by the highly contagious Omicron variant. The remaining justices have appeared in the courtroom for arguments, with each of them wearing masks except for Gorsuch.

The nine justices returned to in-person arguments last fall for the first time since the onset of the pandemic. At the time, none of the justices wore masks during oral arguments besides Sotomayor, NPR reported. The Centers for Disease Control and Prevention says either type of diabetes could make a person more susceptible to severe illness from COVID-19.

As infections began to spike recently, Chief Justice John Roberts "in some form" asked the entire court to wear masks on Sotomayor's behalf, NPR reported. All of them did, with the exception of Gorsuch.

Based on the court's tradition, Sotomayor, appointed by President Barack Obama in 2009, sits on the bench next to Gorsuch, who was appointed by President Donald Trump in 2017.

Sotomayor doesn't feel safe around unmasked people and has been participating remotely, NPR reported. All nine justices are fully vaccinated and have received booster shots against COVID-19.

Gorsuch's "continued refusal since then has also meant that Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone," NPR reported.

More than a day after NPR published its report, Justices Sotomayor and Gorsuch released a joint statement saying in part, "While we may sometimes disagree about the law, we are warm colleagues and friends," The New York Times' Adam Liptak reports. Their statement also denies that Sotomayor asked Gorsuch to wear a mask, which does not address Totenberg's reporting that Justice Roberts asked the entire court to mask up.

NPR strongly defended Totenberg's reporting, pointing out that the justices' statement does not directly contradict their story.

"Totenberg never reported that Justice Sotomayor asked Justice Gorsuch to wear a mask, nor did she report that anyone admonished him," NPR spokesman Ben Fishel said in a statement.

Later Wednesday, Roberts, through the court, released his own statement saying he "did not request Justice Gorsuch or any other Justice to wear a mask on the bench."

A Supreme Court spokesperson didn't immediately respond to a request for comment on Gorsuch's behalf.

Totenberg, a longtime Supreme Court reporter, also described an institution that's overflowing with animosity.

The court's three liberals, including Sotomayor, are increasingly upset with their conservative colleagues, especially over the possibility that Roe v. Wade, the landmark ruling that legalized abortion nationwide, could soon be overturned.

The justices recently split along ideological lines in a 6-3 decision that blocked the Biden administration's mandate that would have required private companies with over 100 employees to get their workers vaccinated against COVID-19 or tested weekly. The court's conservative majority expressed skepticism of the Biden administration's power to impose a sweeping mandate on workplaces without direct authorization from Congress.

The three liberals disagreed, writing in a dissenting opinion: "When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise."

In a separate 5-4 ruling, the court allowed a Biden-administration mandate that required COVID-19 vaccinations for healthcare workers at federally funded facilities to take effect. Two of the court's conservatives, Roberts and Justice Brett Kavanaugh, joined the liberals in the majority.

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