The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Back in September, I celebrated the fact that there were no ostensible leaks from the Supreme Court to the press. Joan Biskupic, who once had more leaks than a plumber, came up dry. Fortunately, Chief Justice Roberts did not have to resign.
Fast-forward to January 18. Several journalists reported on a leak, of some sort, from the Supreme Court. No, we do not have inside information about Dobbs, or the shadow docket, or pending retirement news. We have leaks about Maskgate. Yes, the decision of Justice Gorsuch not to wear a mask on the bench.
First, Nina Totenberg include this tidbit in her published report:
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.
When I read these paragraphs, I immediately perked up. Somehow, Totenberg reported on something Chief Justice Roberts did. What exactly he did, we are not sure. But Roberts took some action. Co-Blogger Jon Adler also picked up on Totenberg's reporting:
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.
Later in the day, Totenberg appeared on All Things Considered. She repeated her claim, almost verbatim.
But now with the omicron surge, the situation had changed. And according to court sources, Sotomayor didn't feel safe in close proximity to people who were unmasked. So Chief Justice John Roberts, understanding that, in some form or other suggested that the other justices mask up. And they all did, except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal also meant that Sotomayor did not attend the justices' weekly conference in person, joining instead by telephone. And she will do it again this week.
Her comment on the live broadcast here was nearly identical to her comment in print–thought she added "some form or other." Again, Totenberg seems to be writing based on inside information.
Tuesday evening, Ariane de Vogue published a similar account on CNN, with more details:
Supreme Court Justice Sonia Sotomayor has been listening to arguments remotely from her chambers because she doesn't feel comfortable sitting on the bench near colleagues who are not masked, including Justice Neil Gorsuch, according to a source familiar with the situation.
Here we have a single source, not multiple sources. And it does not say a source within the Court, or some such qualifier. It merely says a "source familiar with situation." Who knows how this source would have inside info?
Later in the piece, we get this paragraph:
At the beginning of the term, Sotomayor wore a mask on the bench at many cases. Another source familiar with the situation said that after Omicron surged, Sotomayor expressed her concerns to Chief Justice John Roberts. The source said she did not directly ask Gorsuch to wear a mask. She has participated remotely during arguments this month.
Ah, now we have "another source." It is not clear if this source is the same source referenced in the first paragraph, although the accounts seem similar enough. How did this private conversation between Chief Justice Roberts and Justice Sotomayor leak to the public?
Finally, Shannon Bream appeared on Fox News to respond to Totenberg's reporting. She said:
"A source at the Supreme Court says there has been no blanket admonition or request from Chief Justice Roberts that the other Justices begin wearing masks to arguments. The source further stated Justice Sotomayor did not make any such request to Justice Gorsuch. I'm told, given that fact, there was no refusal by Justice Gorsuch."
"A source at the Supreme Court says there has been no blanket admonition or request from Chief Justice Roberts that the other Justices begin wearing masks to arguments." pic.twitter.com/petcj6q1nK
— ???????? Mike Davis ???????? (@mrddmia) January 19, 2022
Here, we have "a source at the Supreme Court," and not just a "source familiar with the situation." So that source seems closer to the Court. But the statement is not very helpful. Roberts may have done something short of a "blanket admonition or request." Totenberg's carefully crafted statement suggests something more subtle may have been done. Also, Bream agrees with De Vogue that Sotomayor did not ask Gorsuch directly.
I am not sure what to make of these leaks. Somehow, private conversations are getting to the press. Three journalists each have consistent accounts, with slightly different shadings. I hope these leaks do not augur further leaks about Dobbs and other cases. Things have been relatively quiet. I am still on the lookout for a spate of writings, in short order, about the abortion case. Like with Bostock, that pattern suggests something is afoot.
Update: Marcia Coyle addressed this situation on Wednesday morning:
NPR reported this week that the justices, with the exception of Gorsuch, agreed to wear masks at the request of Chief Justice John Roberts Jr., who "understanding" Sotomayor's discomfort at being in close proximity to non-mask wearers, made his request "in some form."
NPR also said Gorsuch's "continued refusal since then has also meant that Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone."
So, mask mystery solved? Maybe not.
Our court sources say Roberts made no such mask request, and the timeline for Sotomayor's decision to go remote does not work with that claim as well.
Of course, this is the problem with unnamed sources which is especially the bane of SCOTUS reporters' existence. One part of the NPR report most court watchers agree with is "Gorsuch, from the beginning of his tenure, has proved a prickly justice."
"Court sources," plural? And I don't think Totenberg actually said that Roberts made a formal request. There was something short of that. This episode is starting to get silly.
Update 2: Now Justice Sotomayor has released a statement:
Just in: Statement by Justice Sotomayor and Justice Gorsuch: 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.
Just in: Statement by Justice Sotomayor and Justice Gorsuch:
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.
— Robert Barnes (@scotusreporter) January 19, 2022
This entire enterprise is so stupid. Please, no more unsourced leaks?
Update: This story continues to get stupider. Chief Justice Roberts had to release a statement indicating that he did not ask anyone to wear a mask.
"I did not request Justice Gorsuch or any other Justice to wear a mask on the bench."
MORE JUST IN on Maskgate, this time from the Chief Justice: "I did not request Justice Gorsuch or any other Justice to wear a mask on the bench."
— Robert Barnes (@scotusreporter) January 19, 2022
Can we please let this story die?