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Maskgate supreme: a test case of idealist chickens coming home to roost

As the justices try to dispel reports of internal discord over Covid-19 precautions, a bigger divide on First Street lurks behind the mask.

WASHINGTON (CN) — High court drama stood as a microcosm this week for how some justices handle the real-world costs of clinging to dogma.

The controversy began when all but one justice suddenly started wearing masks on the bench, and the judge who would otherwise sit next to him began taking arguments from her chambers. NPR's Nina Totenberg leaned in Tuesday by noting that Justice Sonia Sotomayor, as a diabetic, is more at risk for serious illness or even death if she contracts Covid-19. And, she reported, Justice Neil Gorsuch declined to wear a mask when asked to do so by the court's chief justice.

Shortly thereafter, the court took the extremely rare step of responding to that reporting with a statement from Sotomayor and Gorsuch saying Sotomayor never asked Gorsuch to mask and that, while they disagree about the law, “we are warm colleagues and friends.” The problem is the reporting never said Sotomayor asked Gorsuch to wear a mask, it said Chief Justice John Roberts did. 

A few hours later, the court made yet another unusual statement — this time from the chief justice himself. Addressing Totenberg’s reporting head-on, Roberts said he did not ask Gorsuch or any other justice to wear a mask on the bench. He added that he would not have further comment on the matter.

To be clear, the court has previously stipulated that all the justices are vaccinated and boosted. The court also requires attorneys and reporters in the courtroom both to test for Covid-19 and to mask up with an N95 or KN95. 

Totenberg and NPR have so far stood firm on their reporting despite the court’s statements.

The public may never get seconds of this gossip from the tightlipped high court, but the timing of the episode — just days after a ruling that blocked the federal government's vaccine-or-test mandate for large private workplaces — gives plenty of gristle. Around the country, millions of Americans may stand at odds with colleagues who have different levels of risk tolerance for a deadly pandemic that has claimed over 800,000 lives. 

The court can claim there isn’t a divide on civility between the justices but, on issues of how their interpretation of the law and the constitution will affect the American people, the divide is undeniable. 

“Like any group of nine people, there will be both warmth and rancor, which are normal and expected,” Lawrence Gostin, a professor at Georgetown Law, said in an email. “The bigger issue by far is the cavernous divide among the justices about the constitution, statutory construction, and the role of compassion and justice in their adjudications.” 

The appearance of warm collegiality despite strong legal disagreements is meant to be an example for the legal profession and the nation. If the late Justices Ruth Bader Ginsberg and Antonin Scalia can stand on opposite sides of legal disagreements but then come together to go to the opera and ride elephants then of course the American public can hold wide-ranging views while still remaining together as one. 

This image provided by the Supreme Court shows Supreme Court Justice Ruth Bader Ginsburg and Supreme Court Justice Antonin Scalia as they ride an elephant in Rajasthan, India, in 1994. (Credit: Collection of the Supreme Court of the United States)

“The justices have been consistently cordial and friendly since at least 1986, when Rehnquist became Chief Justice,” Richard Bernstein, an appellate lawyer, said in a phone call. “This civility sets a good example for the legal profession and the nation. But there is no evidence in high-profile cases, where ideology is primary, that this civility affects either outcomes or the level of heated rhetoric in opinions.”

The consequences of that ideological divide are not only clear in the vaccinate-or-test case but also in a challenge to the most restrictive abortion ban in the country that has prevented almost all women in Texas from having reproductive rights for almost five months. The legalese of the case aside, the effect of the law is to nullify abortion rights in the state, and some of the justices do not seem bothered by state legislatures nullifying their precedents as long as it fits their ideological views. When abortion providers asked the court to force the Fifth Circuit to follow their ruling, the majority refused

“Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory,” Sotomayor admonished the majority in a blistering dissent Thursday.

She continued: “This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.” 

So while it seems important to the court that the American public knows the justices aren’t screaming at each other in hallways, the importance of the justices' “warm friendships” pales in comparison to the divides in how their decisions actually affect the American public. 

“I honestly don't care if the justices get along behind closed doors,” Gabe Roth, executive director of Fix the Court, said in an email. “I care that the nine look at the facts of a case and the relevant statutes and constitutional provisions in order to reach their outcomes — rather than, for every almost major case, simply going along with what their political benefactors would want them to do.” 

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