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.
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.
Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court.
At his first sitting in 2017, he sought to dominate the argument and repeatedly suggested that a complex case, involving conflicting provisions, was really very simple.
“Wouldn’t it be easier if we just followed the plain text of the statute?” he asked over and over. “What am I missing?”
A lot, said his colleagues, both liberal and conservative.
“This is unbelievably complicated,” lamented conservative Justice, Samuel Alito. Whoever wrote the statute must be “somebody who takes pleasure tearing the wings off flies,” he said, provoking loud snickers on the bench.