Gorsuch Goes Bare

I have a new essay on NBC News about Justice Gorsuch's decision to go maskless on the SCOTUS bench. Here is the gist:

The justices seldom respond directly to media reports. But this time, Sotomayor and Gorsuch quickly issued a joint statement denying the NPR story. "Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask ... is false,” they said, adding, “we are warm colleagues and friends.” Roberts soon issued his own statement, explaining that he “did not request Justice Gorsuch or any other Justice to wear a mask on the bench.”

That may get Gorsuch off the hook for refusing a direct request, but it does not explain his churlish insistence on staying unmasked when everyone around him is masking up. In fact, the focus on whether Gorsuch was or wasn’t asked to wear a face covering misses the point: He shouldn’t have had to be asked in the first place.

Consideration for colleagues should be gracious, voluntary and unbidden. The Code of Conduct for United States Judges says as much, calling upon judges to be “respectful and courteous” toward everyone “with whom the judge deals in an official capacity,” including fellow judges. What could be more discourteous than knowingly causing a coworker so much discomfort that she leaves the room?

Gorsuch has voted against almost every Covid prevention measure that has come before his court, including the two recent federal vaccine mandate cases. Other than at the court, he is still subject to the District of Columbia’s regulations requiring masks in all indoor public locations, including stores, theaters, businesses, schools, houses of worship, restaurants and ride share vehicles. Perhaps it was his small act of resistance or personal liberation to appear maskless in a venue where he is literally above the law.

It’s good to know that Gorsuch and Sotomayor remain colleagues and warm friends. But let it be said: Friends don’t let friends risk catching Covid.

You can read the entire piece here.

Comments

[anon]

It is unfortunate that, like Justice Sotomayor, so many are basing their positions on their emotions, and prejudices (here political) and not on "the science."

J. Sotomayor reportedly was concerned that a condition might render her especially vulnerable to COVID, and therefore, was especially concerned by the refusal by Gorsuch to "mask up" as you put it.

This concern, like the number of children affected by COVID, involves a series of presumptions by J. Sotomayor that may not be even close to the empirical truth, and worse, some that are not scientifically supported.

Her theory must be that, although triple vaxxed, she is vulnerable to COVID infection. Although Gorsuch is also triple vaxxed, he too is not only vulnerable to COVID infection, but very likely to transmit it.

Her theory must also be that, also regularly tested, these tests may not be able to detect COVID infection.

Her theory must also be that the environment in which she would be with J. Gorsuch has not been retrofitted in any way to provide additional protection against an airborne virus (ventilation, etc.)

Her theory must also be that the absence of a mask on Gorsuch's face materially affects the likelihood that she will be infected by COVID, whether she wears a mask or not.

Let's just pause and consider J. Sotyomayor's reasoning:

1. Three doses of vaccines don't prevent infection or transmitting the virus;

2. Testing is unable to provide any assurance, and

3. The SCOTUS can't prepare its workspace to protect person who work therein; and

4. Wearing a mask herself cannot ward off the virus if one person anywhere near her does not wear a mask;

5. A "mask" worn by Gorsuch during the relatively brief time she is near Gorsuch (as compared with her entire waking hours) will ward off the virus.

Empathy, indeed, is what we should feel for J. Sotomayor.

[anon]

Just to add to understanding J. Sotomayor's empathetic perception of the threat to her, she is reported (in the transcript) to have stated, during oral argument:

"JUSTICE SOTOMAYOR: Why is the human being not like a machine if it's spewing a virus, blood-borne viruses? Are you questioning Congress's power or desire that OSHA do this?"

[anon]

Oh, and BTW, one suspects Lubet knows better than to state that " in a venue where he is literally above the law."

A J of the SCOTUS is not "above the law."

This is, of course, not even close to being accurate.

Of course, we must emphasize with Mr. Lubet, who apparently believes that his friends can prevent him from "catching" COVID 19 and that he can do the same for them: simply by wearing a "mask."

[ChicagoD]

Just say that Gorsuch is an idiot and be done with it, nothing more is necessary.

[anon]

ChicagoD

Columbia University, BA
Harvard University, JD
University of Oxford, Doctor of Philosophy, Marshall Scholar

His doctoral thesis concerned the morality of assisted suicide

Kellogg, Hansen, Todd, Figel & Frederick, 1995 to 2005,

Principal Deputy Associate Attorney General at the United States Department of Justice

United States Court of Appeals for the Tenth Circuit, 2006 until appointment to SCOTUS

Clearly, ChicagoD, you are in a position to call this man an "idiot." Your record of accomplishment in intellectual work of the highest order must tower over almost every human on the planet. Right?

See, here's the deal, ok? Calling someone an idiot under these circumstances seems to sort of imply that you are projecting.