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Report: Gorsuch Refused Request from Roberts to Wear Mask After Sotomayor Complained

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OPINION: This article may contain commentary which reflects the author's opinion.


Supreme Court Justice Neil Gorsuch apparently refused a request by Chief Justice John Roberts to wear a mask when the court is in session, in deference to liberal Justice Sonia Sotomayor, who is diabetic.

According to NPR’s Nina 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 set up in her chambers.

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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 for 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.

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Pandemic guidelines issued by the Centers for Disease Control and Prevention note that either type of diabetes (and other preexisting conditions) makes the sufferer more susceptible to becoming severely ill from 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,” Totenberg, who has long covered the high court for the taxpayer-supported media outlet, added.

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Totenberg also noted that the court’s conservatives often clash with each other, adding that Justice Samuel Alito, at times, “barely contains his animosity” for Roberts.

She also noted that the court’s liberal minority is growing increasingly impatient and upset with the conservative majority over the prospect that Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide, could be overturned or severely limited at some point.

Most recently, the court’s factions clashed over the Biden administration’s COVID-19 vaccine mandate, Totenberg noted. All six of the Republican-nominated justices agreed to strike down the mandate that required businesses with 100 or more workers to force employees to either get a vaccine or be subjected to weekly testing; the court’s three liberals dissented.

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“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,” the dissent noted.

But then, two of the court’s conservatives, Roberts and Justice Brett Kavanaugh, sided with the Biden administration’s vaccine mandate for healthcare workers employed at facilities that accept federal Medicare and Medicaid funding.

Regarding Roe, one legal expert recently predicted that SCOTUS would decide to overturn the 1973 ruling after the court heard oral arguments in a Mississippi case significantly limiting abortions.

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Frederick Morton, an executive fellow at the School of Public Policy and professor emeritus at the University of Calgary, noted in an op-ed:

“First, the Constitution is silent on the subject of abortion. The word does not appear anywhere in the document. The constitutional right to an abortion is a judicial creation. In Roe, the majority declared that such a right is protected by the right to privacy. These words also do not appear anywhere in the Constitution,” he added.

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