Report Contradicts NPR’s Nina Totenberg: Justice Gorsuch Not Defying Roberts, No Mask Mandate for SCOTUS

Sonia Sotomayor (Andrew Harnik - Pool / Getty)
Andrew Harnik - Pool / Getty

An NPR story that Supreme Court Justice Sonia Sotomayor will continue to work remotely because fellow Justice Neil Gorsuch refuses to wear a mask in court despite a request from Chief Justice John Roberts to do so was quickly debunked by a Supreme Court source.

NPR reported Tuesday that the justices were like a “dysfunctional family”:

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.

But Fox News later reported that according to a source at the Supreme Court the story was not accurate.  Chief Justice John Roberts had not asked the other justices to mask up for arguments, and Justice Sotomayor had not requested Justice Gorsuch wear a mask.  Given those facts, there was no refusal by Justice Gorsuch to wear a mask.

A day after the Fox report contradicting NPR’s Totenberg, Gorsuch and Sotomayor released a joint statement personally refuting the story.

One-time Gorsuch law clerk Mike Davis highlighted the Fox News report in a tweet:

At the time this story was published, NPR had not responded to our request for comment on its now-debunked story.

Editor’s Note: This story and the headline were updated to include that a source at the Supreme Court said the NPR story was not accurate, and that Fox News reported the inaccuracies.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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