The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
NPR has posted a story by Nina Totenberg suggesting that there are simmering tensions among the justices on the Supreme Court. From the article, "Supreme Court justices aren't 'scorpions,' but not happy campers either":
. . . anybody who regularly watches Supreme Court arguments is used to seeing some testy moments in both big and little cases. But you don't have to be a keen observer these days to see that something out of the ordinary is happening.
Some of it is traceable to the new conservative supermajority, including three Trump appointees, a court that may well end up more conservative than any since the 1930s. It's a majority that has evidenced less and less respect for precedent, or the notion of deference to Congress in setting policy.
So it's not surprising that the court's three liberal justices would be upset. . . .
It's not simply an ideological split, according to Totenberg. She reports that the conservatives may have some frustrations with each other.
There isn't a lot of love lost among the court's six conservatives either. They often agree on the outcome of a case but not the legal reasoning, with Chief Justice Roberts sometimes trying to rein in the court's most aggressive conservatives. If you watch carefully, you can see conservative eyes rolling from time to time.
If so, this would not be particularly new. The late Justice Scalia was repeatedly critical of Chief Justice Roberts' minimalist approach.
The opening of Totenberg's story is getting a particular amount of attention, as it addresses how the justices have handled concerns about Covid-19. All of the justices have worn masks to oral argument, except for Justice Gorsuch, and Justice Sotomayor has been participating in oral argument remotely. From Totenberg:
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.
Based upon this report, it seems like Justice Gorsuch is acting like an uncourteous cad, but is all what it seems? The particular wording of Totenberg's report (italicized above) caught my eye. What does it mean that the Chief Justice asked the other justices "in some form"? Totenberg is a careful reporter, so this extra language is there for a reason. Just as reporters are often very careful about how they characterize anonymous sources, this qualifying language is serving some purpose. At the least, it suggests that there was not a formal, direct request from the Chief to all of the other justices, but something less than that (or that is all Totenberg's source was willing to say). [And, for those who care, all the justices are vaccinated, so they are all compliant with the OSHA ETS rejected in NFIB v. OSHA, which did not require masks or testing for vaccinated employees.]
An additional reason for caution about Totenberg's report is that some are quick to presume the worst about the Court's conservatives or to see scandal when it is not there. Recall that when Justice Breyer joined Justice Sotomayor in participating remotely in oral argument, some commentators were quick to presume this was a response to Gorsuch's decision not to wear a mask. Yet this was not so. Justice Breyer participated remotely because he had tested positive with a rapid test.
So if the Chief Justice asked all the justices to wear masks to-from argument out of respect to Justice Sotomayor, and Gorsuch refused, I think it's fair to call him out on that. Based on this report, however, I am not certain that is what happened. There may be more to the story.
UPDATE: It turns out there is more (or, rather, less) to the story, as detailed in Josh Blackman's post and its updates in particular.