The Margin: To mask or not to mask? At the U.S. Supreme Court, there’s not unanimous agreement among justices


Apparently, the Supreme Court of the United States is no different than many American workplaces when it comes to conflicts about wearing masks as a COVID-19 safeguard.

Justice Neil Gorsuch hasn’t been wearing a mask during recent court proceedings, according to numerous news accounts. Slate also reported that Justices Sam Alito and Clarence Thomas have “removed their masks for extended periods.”

Meanwhile, Justice Sonia Sotomayor has chosen to participate in sessions remotely. National Public Radio noted that Sotomayor has diabetes, which would put “her at high risk for serious illness, or even death, from COVID-19.” NPR also noted that Gorsuch and Sotomayor are normally seated next to each other on the bench.

Perhaps most significant of all: The NPR story, from longtime legal-affairs correspondent Nina Totenberg, reported that Chief Justice John Roberts asked his fellow justices to mask up in consideration of Sotomayor’s health situation.

Gorsuch, Alito and Thomas are part of the court’s conservative majority, while Sotomayor is considered one of the most liberal of the court’s nine justices.

The masking situation at the court is a reflection of the American reality, some observers have noted.

It “is such a perfect microcosm of how millions of Americans are experiencing the pandemic — from both perspectives,” legal scholar Steve Vladeck tweeted on Tuesday.

“SCOTUS is a microcosm of the American workplace,” said another commentator on Twitter.

Gorsuch has faced plenty of criticism for his decision not to mask. Washington Post deputy editorial page editor Ruth Marcus said Gorsuch’s mask-less state speaks “to the heart of our fraying social fabric.”

At the same time, Gorsuch has had some defenders on social media, who say his decision not to wear a mask is within his civil rights.

In December, the Supreme Court put rules in place requiring that attorneys “wear masks that cover the nose and mouth at all times within the Court building, except when actively eating or drinking.” The Supreme Court also required that “attorneys wear an N95 or KN95 mask in the Courtroom, except when presenting argument.”

The rules make no mention of what’s required of the Supreme Court justices, however. Officials with the court didn’t immediately respond to a MarketWatch request for comment.

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