Supreme Court Justices Neil Gorsuch and Sonia Sotomayor issued an unusual statement Wednesday asserting there is no tension on the high court around masking and stressing that Sotomayor did not ask Gorsuch to wear a mask while on the bench.
In the rare statement, the justices said that “reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.”
The statement came just after the first set of oral arguments Wednesday. Gorsuch appeared, again, without a mask and Sotomayor participated remotely from her chambers, as she has done this month amid a surge in the Omicron variant of Covid-19.
Sotomayor suffers from diabetes as an underlying condition and would be at increased health risk if infected with Covid-19.
Chief Justice John Roberts also issued a statement through the court’s press office, saying: “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.”
Roberts will have no additional comment, the court said.
Sotomayor has been participating in oral arguments remotely from her chambers because she doesn’t feel comfortable sitting on the bench near colleagues who are not masked, including Gorsuch, according to a source familiar with the situation.
In addition, Sotomayor has been participating in the justices-only conference sessions remotely, a court spokeswoman confirmed. Those sessions – where only the nine are allowed, no staff or hangers-on – is where the justices debate and essentially determine the legal direction of the country.
Since January, amid the surge of the Omicron variant of the coronavirus, all of the justices have entered the chamber wearing masks, except for Gorsuch. In the ornate courtroom, he sits to Sotomayor’s left. .
Last fall, at the beginning of the term, Sotomayor wore a mask on the bench at many cases. Another source familiar with the situation said that after Omicron surged, Sotomayor expressed her concerns to Roberts.
CNN has reported that Sotomayor did not ask Gorsuch directly to wear a mask.
At oral arguments on Wednesday some justices, including Roberts, Samuel Alito and Clarence Thomas, occasionally took their masks off and later replaced them. The two other liberal justices on the bench, Stephen Breyer and Elena Kagan, kept their masks on even while asking questions.
Under Supreme Court rules, media covering the court proceedings and lawyers arguing before the court have to wear masks, but there are no specific rules regarding masks for justices. All of the justices have been fully vaccinated and received booster shots. They are also frequently tested.
This story has been updated with a statement from Chief Justice Roberts.
