Are the Supreme Court Justice “Happy Campers”?

NPR published a Nina Totenberg story that suggested simmering tensions within the Supreme Court justices. The article states that “Supreme Court Justices aren’t’scorpions’, but they are not happy campers too”

 . . . Anyone who watches Supreme Court arguments regularly is familiar with the testy moments that can occur in big and small cases. It doesn’t take a great observer of Supreme Court proceedings to spot something extraordinary.

A portion of this can be traced back to the conservative supermajority that includes three Trump appointees. It is a court which may prove more conservative than any other since the 1930s. This majority has shown less respect for precedent or deference to Congress when setting policy.

It’s therefore not surprising that three of the liberal justices on the court would lose their jobs. . . .

Totenberg says it’s more than an ideological divide. Totenberg reports that there may be some friction between conservatives.

The court’s six conservative justices don’t have a lot in common. The court’s six conservatives often reach an agreement on how a case will end, but they disagree about the legal reasoning. Chief Justice Roberts is sometimes trying to restrain the most uncompromising of the court’s extreme conservatives. You can often see the rolling eyes of conservatives if you pay attention.

This would be not a new idea, if so. Justice Scalia repeatedly criticized Chief Justice Roberts minimalist approach.

Because it examines how justices dealt with concerns regarding Covid-19, the opening of Totenberg’s story has been receiving a lot of attention. Except for Justice Gorsuch and Justice Sotomayor, all the justices have worn masks during oral argument. Totenberg

The U.S. Supreme Court justices took to the court for the first-time since the holiday omicron surge. It was quite jarring. They were all wearing masks now. Justice Neil Gorsuch, however, was not present. Justice Sonia Sotomayor chose to speak through her chambers via a microphone instead.

Sotomayor suffers from diabetes. This condition puts her at risk for severe illness and even death due to COVID-19. Sotomayor has been the last justice to don a mask since last fall. It was during a significant decline in COVID-19 cases that the justices resumed face-to-face arguments for the first times since the outbreak.

However, things had altered with the Omicron Surge. Court sources say that Sotomayor felt unsafe in close proximity of unmasked people. Chief Justice John Roberts was able to understand that. In some wayAsk the justices for help.

They did. But Gorsuch is not among them. Sotomayor, who has refused to attend the weekly justices conference since that time, has instead joined by phone.

This report suggests that Justice Gorsuch seems uncourteous, but it is not what it appears. Totenberg’s particular report (italicized below) caught my attention. It is unclear what it means that the Chief justice asked each of the other justices to complete a “in some way”. Totenberg is an experienced reporter so the extra language serves a purpose. The qualifying language, which is similar to how reporters characterize anonymous sources in a way that they are very cautious about, serves some purpose. It suggests, at the very least, that the Chief did not request all the justices directly, but that Totenberg was willing to share less. [And, for those who care, all the justices are vaccinated, so they are all compliant with the OSHA ETS rejected in NFIB v. OSHA, which did not require masks or testing for vaccinated employees.]

Totenberg’s report has another reason to be cautious about. Some are quick to assume the worst of the Court’s conservatives, or see the scandal even when it’s not. Some commentators assumed that Justice Breyer was responding to Gorsuch’s decision to not wear a mask when he joined Justice Sotomayor for remote oral argument. Yet this was not so. Justice Breyer participated remote because he was positive in a remote testing.

So, if Justice Sotomayor asked for all justices to don masks from argument, Gorsuch declined, it seems fair to call him out. This report does not prove that the event occurred. The story may have more layers.