Media Criticism

How Many Supreme Court Justices Must Deny NPR's Reporting Before Media Outlets Believe Them?

John Roberts, Neil Gorsuch, and Sonia Sotomayor have all denied Nina Totenberg's story about a SCOTUS dispute over masking.


Want to hear some gossip? Lately, rumors have been flying, especially rumors concerning a notoriously secretive and imperious institution: the Supreme Court of the United States. The Court has recently heard several important cases relating to the Biden administration's vaccine mandates for private sector workers and health care workers—but members of the public who closely followed the oral arguments might have noticed that Associate Justice Sonia Sotomayor did not appear in person; she participated virtually, from her chambers.

Sotomayor is one of the more COVID-cautious justices, owing to an underlying health condition, diabetes. She usually wears a mask, and has decided to wait out the omicron variant. That's her right, of course—the justice should do whatever is best for her health.

But according to media reports, Sotomayor was specifically concerned about appearing in person due to a colleague's failure to wear a mask. Chief Justice John Roberts asked the other justices to wear masks, but Associate Justice Neil Gorsuch allegedly refused.

NPR's legal affairs correspondent Nina Totenberg made that claim in a bombshell report earlier this week. She wrote:

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.

This revelation prompted widespread denunciation of Gorsuch, who has authored a book called A Republic, If You Can Keep It that laments the loss of civility in public discourse and in politics.

How could a man who decries that political actors no longer treat each other with basic decency refuse to wear a mask for the immunocompromised colleague who sits next to him? Obviously, that would be hypocritical.

But here's the problem: NPR's reporting is now being challenged.

First, Fox News' Shannon Bream did some digging of her own, and her SCOTUS sources said the report was untrue—Gorsuch did not refuse a request to mask up.

Dueling news stories—one from the progressive mainstream, another from a right-leaning outlet—are hard to adjudicate. But the Supreme Court made it easier for us. Yesterday, Gorsuch and Sotomayor released a joint statement putting the rumor to bed:

"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."

Did that dispel the story? Not quite. Progressive activist Charlotte Clymer called it a dodge, because technically NPR had reported that Roberts, acting on behalf of Sotomayor, asked Gorsuch to mask up, not Sotomayor. I guess we'll never know for sure…but wait! The chief justice released a statement as well. In it, he unequivocally states that he did not ask Gorsuch to wear a mask.

I think a rational person should consider this case closed. If you really want to believe that Roberts, Gorsuch, and Sotomayor herself are all lying about this, fine. Go right ahead. But when all sides of an alleged dispute deny that it took place, and they are generally reputable people, and all we have to the contrary is anonymous sourcing, it's pretty clear how we should generally feel about it.

To some extent, the damage was already done, however. The NPR story was repeated far and wide, by Newsweek, by The Daily Beast, by MSNBC and CNN, Politico, USA Today, Business Insider, and on and on.

The New York Times' Jamelle Bouie smeared Gorsuch as "an impossibly callous guy with poisonous levels of self-regard." And that was one of the more polite descriptions. If you want to read others, check out this thread by the conservative writer Drew Holden, who, as always, has the receipts.

I have to wonder how many people will have seen the initial story, but miss the important clarifying information. I have to wonder how many others will lose faith in the media over a botched story like this—or have already lost faith, due to the sheer frequency with which poorly and anonymously sourced stories are pushed by the media, and then fall apart days later.