In an era in which everyone’s a media critic, Nina Totenberg has been getting some exceptionally rough reviews lately. NPR’s veteran Supreme Court watcher last week reported that conservative Justice Neil Gorsuch refuses to wear a mask while sitting next to liberal Justice Sonia Sotomayor, who has Type 1 diabetes, thus causing Sotomayor to participate remotely in the court’s deliberations.

Justices Sonia Sotomayors, left, and Neil Gorsuch gather with other justices of the U.S. Supreme Court for an official group portrait in Washington in 2017. Sotomayor has Type 1 diabetes, and an NPR report last week that
Chief Justice John Roberts “in some form asked” the justices to mask up for her benefit is in dispute. J. Scott Applewhite/Associated Press, File

To the delight of the right, a detail in Totenberg’s story – that Chief Justice John Roberts “in some form asked” the justices to mask up for Sotomayor’s benefit, and that Gorsuch defied him – is in dispute. The sound and fury around that one word, “asked,” is blurring what seems to be the bigger question: Is Gorsuch really refusing to wear a mask to the point of driving his colleague out of the room? That particular question remains conspicuously unanswered.

Gorsuch and Sotomayor issued a joint statement denying that Sotomayor had asked Gorsuch to mask up. But, in fact, Totenberg’s story didn’t claim that Sotomayor had personally made such a request. More problematic is Roberts’ public statement asserting that he did not “request” that justices wear masks. It was a single sentence, without elaboration, and Totenberg’s defenders were quick to point out that it didn’t preclude the possibility that Roberts encouraged mask use with a verb less specific than “request” (“suggest”? “hint”? “indicate”?). Indeed, the tentative wording in Totenberg’s report indicates she herself wasn’t clear on whether this was a directive, a request or something milder.

But, notably, the underlying central claim of the story – that Gorsuch’s refusal to mask has forced Sotomayor to distance herself from her colleagues – hasn’t been specifically disputed by anyone. All that’s clear is that Sotomayor is now participating in the court remotely, and of the eight remaining justices appearing in public together lately, Gorsuch is the only one who hasn’t been masked.

Is it possible everyone has the cause-and-effect relationship backward? That is, that Sotomayor preemptively decided for her safety to work remotely, regardless of whether her colleagues were masked, thus leading Gorsuch to decide it wasn’t necessary to wear one? That would be the most benign explanation. But if that’s the case, why didn’t Gorsuch and Sotomayor just say that in their joint statement, rather than letting this storm rage for the past week?

Their silence on that point suggests this may well be the familiar scenario that too many Americans are seeing in their workplaces: the stubborn refusenik who thinks his right to make a point about not being told what to do supersedes a co-worker’s right to breathe. If that’s not the case, Sotomayor and Gorsuch should say that, if only for the sake of the public’s already-diminished esteem for the court. And if that is the case – well, the public deserves to know that as well.

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