Gorsuch didn't mask despite Sotomayor's COVID worries, leading her to telework Anybody who regularly watches Supreme Court arguments is used to seeing testy moments. But you don't have to be a keen observer these days to see that something out of the ordinary is happening.


Gorsuch didn't mask despite Sotomayor's COVID worries, leading her to telework

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Justices of the Supreme Court like to tell audiences how well they get along, even when they have profound legal disagreements. Some of that collegiality appears to be wearing thin now, and that has potential consequences. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: It was pretty jarring when the justices took the bench for the first time after the holidays amid the omicron surge. All were wearing masks - all, that is, except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate from her chambers. Sotomayor is a longtime diabetic, a condition that puts her at high risk for serious illness or even death if she were to catch COVID-19. Indeed, she was the only justice who wore a mask when the court resumed in-person arguments while cases were down last fall.

Now, though, the situation had changed, 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 or other 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.

You don't have to be a keen observer these days to see that something out of the ordinary is happening. Some of it's traceable to the new conservative supermajority, including three Trump appointees - a court that may well end up being more conservative than any since the 1930s. So it's not surprising that the court's three liberal justices would be upset. It's the degree of the upset, though, that telegraphs something different.

When the court in November seemed on the verge of overturning Roe v. Wade, Justice Sotomayor had some well-placed verbal jabs at the ready, noting that over 50 years, 15 justices had upheld Roe, and only four dissented.


SONIA SOTOMAYOR: Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

TOTENBERG: At oral argument, you can see Justice Kagan, one of the court's best questioners, sometimes simply shut down rather than alienate her colleagues. Still, her anger is often palpable, the color literally draining from her face. And Justice Breyer, on occasion just holds his head. Neither, however, could contain themselves 12 days ago at the argument testing the government's vaccine or test mandate for large employers. Breyer called the challenger's argument, quote, "unbelievable," and Kagan put it to them this way.


ELENA KAGAN: This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. And this is the policy that is most geared to stopping all this.

TOTENBERG: There isn't a lot of love lost either among the court's six conservatives. They often agree on the outcome of a case but not the legal reasoning, all of which is contrary to the picture both liberal and conservative justices like to paint for the public.

Just over three years ago, Kagan and Sotomayor, speaking at Princeton, talked about how hard all the justices work to maintain good relationships and contrasted the court in 2018 to the court in the 1940s, when the justices detested each other so much, they were known as nine scorpions in a bottle. We are not scorpions, said Kagan.


KAGAN: I think all of us need to realize how precious the court's legitimacy is. You know, we don't have an army, and we don't have any money. And the only way we get people to do what we say that they should do is because people respect us and respect our fairness.

TOTENBERG: There are, of course, some long and perhaps not-so-buried resentments among the conservatives. Gorsuch is obviously a prickly personality. Alito, on occasion, barely conceals his disdain for the chief. Perhaps that stems from his belief that he would be chief justice today but for an unexpected twist of fate and timing in 2005.

Harvard Law professor Noah Feldman, author of "Scorpions," a book on the divided 1940s court, notes that the conservatives on today's court initially got on reasonably well. But two things are happening to change that.

NOAH FELDMAN: One is that they are on the cusp of what, from their perspective, is a historic opportunity to reverse some liberal decisions that their whole movement grew out of hating, with Roe v. Wade being the most famous. The second is that you're seeing fissures in a conservative legal movement based on its success.

TOTENBERG: And part of that is that several of the conservative justices see themselves as the heir apparent to the modern era's conservative icon, the late Justice Antonin Scalia. But Scalia was, in some ways, actually less conservative than the current crop. And when it comes to the flashpoint issues of our times - guns, religion and abortion - the conservative wing seems more united than divided.

FELDMAN: The conservative justices are playing with fire.

TOTENBERG: Feldman notes that in recent decades, the court has built its legitimacy by giving the Left some of what it wanted and the Right some of what it wanted.

FELDMAN: The current conservative majority is on the cusp of ending that game. If they overturn Roe v. Wade, as it looks like they will probably do, they are doing something the Supreme Court has never done in its history, and that is reverse a fundamental right that ordinary people have enjoyed for 50 years and say, whoops, you never really had this right at all.

TOTENBERG: What would be the longer consequences of that for the court? Perhaps nothing. It certainly seems preposterous today to imagine enough votes in Congress, especially the Senate, to expand the size of the court. But some constitutional scholars, like Feldman, see the kind of conservative activism that is unfolding now as posing a danger to the court itself not too far down the road.

FELDMAN: Abortion, guns and religion are and will always be hot-button, front-page topics in the United States. Over time, those kinds of things add up. I don't think it'll happen through the drip, drip, drip. I think it will happen through the tsunami. But I also think that overturning Roe v. Wade could well turn out to be the beginning of that tsunami.

TOTENBERG: Nina Totenberg, NPR News, Washington.


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