Reporter earns supreme rebuke


“We are warm colleagues and friends.”

— Joint statement from justices Gorsuch and Sotomayor

“I did not request Justice Gorsuch or any other justice to wear a mask on the bench.”

— Chief Justice John Roberts

The story early this week on NPR Radio from legal reporter Nina Totenberg seemed to make perfect sense. Throughout the country, Americans are divided along political lines on just how (or whether) the government should be involved in mitigation efforts in regards to the pandemic. Thus, a report indicating that a similar divide existed between two of the courts politically diverse justices was easy for listeners to believe.

And parts of the story were readily verifiable. Justice Sotomayor has, indeed, been wearing a mask in Supreme Court oral arguments since those arguments went back to being in person, even during the period where the other eight justices were not. It is also publicly known that she is diabetic, and that diabetes is a risk factor for severe infections of Covid-19. And it is also verifiable that seven of the other justices recently went back to wearing masks, but Justice Gorsuch, who sits next to Justice Sotomayor, did not.

Thus, when Totenberg, who has reported on the Supreme Court for nearly five decades, said that sources at the court had told her that Chief Justice Roberts had asked the associate justices to mask-up again during the omicron surge, that Gorsuch refused, and that as a result of that refusal, Sotomayor had decided not to attend oral arguments in person and was participating by telephone, the story made headlines around the world.

But on Wednesday, a series of remarkable things happened. First, in an almost unprecedented manner, the two justices about whom Totenberg reported — justices Sotomayor and Gorsuch — issued a joint statement refuting nearly every part of the story. Not only did they deny that Sotomayor had asked the chief to make the mask request, they also refuted her characterization of their relationship.

In her original report, Totenberg stated, “Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court.” That’s a fairly bold statement, particularly given the fact that Sotomayor, in a 2019 speech, had said of Gorsuch, “He’s a lovely person,” and that the two justices are frequently seen laughing and joking with one another on the bench. In their joint statement, the justices described themselves as “warm colleagues and friends” and directly stated that the NPR report was “false.”

At this point, it would have been easy to defend the story by simply stating that the sources behind the original report were close to the justices and reliable, and thus the report was deemed appropriate. But fellow NPR reporter David Gura delivered the next remarkable moment in the day when he directly accused the justices of lying, tweeting, “I (sic) surprised at how many Supreme Court correspondents I admire are passing along a statement from two justices that is at best false without any context whatsoever.” Characterizing a statement from two U.S. Supreme Court justices that is about facts that would be personally known to them as “at best false” is certainly a bold decision.

This led to the next astounding development — an additional statement from the high court — this time from the chief justice himself. His statement made clear that not only did he not ask Justice Gorsuch to wear a mask on the bench, he had not made that request of any of the justices.

Totenberg then issued a follow-up story in which she noted that portions of her story were verifiable, regardless of the statements of the justices. She said, “What is incontrovertible is that all the justices have at once started wearing masks —except Gorsuch. Meanwhile, Justice Sotomayor has stayed out of the courtroom. Instead, she has participated remotely in the court’s arguments and the justices’ weekly conference, where they discuss the cases and vote on them.” But she also tweeted out a statement from NPR saying that it stood by her original reporting.

Totenberg is among the most experienced and longest serving Supreme Court reporters and has broken major stories about the court and politics for decades. It is probable that she had reliable sources that verified the story. But the sequence of events in which multiple statements came directly from the court, refuting a news report, and then a fellow reporter directly accused the justices of lying, is quite remarkable, and likely entirely unprecedented. In an environment in which everything seems politically charged, the statement from two philosophically diverse justices that they are collegial and friendly, was certainly the best part of the amazing exchange.

By David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.

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