Outside their usual docket of blockbuster constitutional controversies, Supreme Court justices are divided over something else: face masks.
The high court returned to in-person arguments in October, but a recent surge in COVID cases due to the omicron variant has the justices split over safety protocols.
Associate Justice Sonia Sotomayor has diabetes, which puts her at higher risk for a serious bout with COVID-19. In the fall, the Obama appointee was the only one of the nine justices to wear a mask in the courtroom where attendance is limited because of the coronavirus to the court, the attorneys and the Supreme Court press corps. As cases began to rise during the holiday season, Sotomayor said she did not feel safe near people who were unmasked.
Chief Justice John Roberts then asked everyone to wear masks in the courtroom, NPR reported. Everyone complied — except for Associate Justice Neil Gorsuch.
Since Gorsuch, who sits next to Sotomayor on the bench, has refused to wear a mask, Sotomayor has been tuning into arguments remotely from her chambers at the Supreme Court building.
Sotomayor, 67, has also been taking part in conferences remotely this month, a Supreme Court spokeswoman confirmed. Those closed-door meetings are where the justices discuss cases among themselves.
Gorsuch, through the court, has not responded to several requests about his decision to not wear a mask in the courtroom.
Sotomayor’s concerns over the spread of COVID in the courtroom aren’t unfounded. Last Tuesday, Associate Justice Stephen Breyer, the oldest member of the court, also participated in oral arguments remotely after initially testing positive for COVID-19. He later took more tests, including a PCR test, that showed he was negative.