Supreme Court Justice Neil Gorsuch has refused to wear a mask during recent court sessions, even though five of his colleagues are at least sixty-seven years old and Justice Sonia Sotomayor has diabetes, a comorbidity that puts her at high-risk for severe COVID-19.

NPR reports that Chief Justice John Roberts is sensitive to Sotomayor’s understandable discomfort sitting around unmasked individuals, so he’s asked court participants to don a mask. All Justices have complied – except Gorsuch.

Nina Totenberg reports that (1) the Chief Justice asked his colleagues to mask up out of respect for Sotomayor’s health concerns, (2) only Gorsuch refused, and (3) his refusal forced Sotomayor to participate in arguments and conference remotely. https://t.co/DmsQV8j7Wz pic.twitter.com/7JG5hMN0q7

— Mark Joseph Stern (@mjs_DC) January 18, 2022

Gorsuch and Sotomayor sit next to each other on the bench. Last week, she and Justice Stephen Breyer – who is 83 years-old – participated in court activity remotely.

The New York Times writes:

That Gorsuch would resist mask wearing is no surprise. He is a conservative judge with a libertarian streak who has spent his life around Republican politics. In conservative circles, masks have become a symbol of big-government subjugation.

But his decision not to wear one — while the other Republican appointees on the court all were — still felt surprising. The justices usually make an effort to treat one another respectfully. They disagree on the law, sometimes harshly, while maintaining productive and even warm relationships, like the famous friendship between Antonin Scalia and Ruth Bader Ginsburg.

Writing in The Washington Post, columnist Ruth Marcus blasted Gorsuch’s breach of common courtesy:

The sad part here is that Gorsuch is more emblem than outlier. The pandemic has brought out the best in some of us, but the worst — the most selfish and irresponsible — in too many others. This “you’re not the boss of me” immaturity has made a difficult period even harder.

Actions that should be understood as minor inconveniences desirable for the greater good have somehow been transformed into intolerable incursions on liberty. Being required to wear a mask has assumed symbolic resonance far in excess of any reasonable objection.

No one is the boss of Justice Gorsuch. Like his colleagues, he had a choice about whether to wear a mask. Unlike them, he chose poorly.

Justice Gorsuch wore no mask during oral argument yesterday, the only justice to openly defy the rules, on a day they were considering Covid cases. After all, who’s going to make him? The focus on “me” over “we” is emblematic of what is wrong with America. https://t.co/GR1rCHuRLS

— Barb McQuade (@BarbMcQuade) January 8, 2022

Amid the controversy over Gorsuch’s refusal to wear a mask, court reporter Cristian Farias uncovered this ironic tidbit:

A couple of years ago, Neil Gorsuch wrote a whole book lamenting the loss of civility in public life. In it, he quotes a rule George Washington is said to have learned as a child: “Bedew no man’s face with your spittle, by approaching too near him when you speak.”

One of Gorsuch’s former law clerks, Mike Davis, came to the defense of the Trump nominee on Twitter, writing “Every justice is vaccinated and boosted. Don’t vaccines work? We know cloth masks don’t.”

Writer David Leonhardt responded to that sentiment in his New York Times’s newsletter, calling it “both exaggerated and beside the point.”

Masks, especially medical masks like KN95 and N95 masks, reduce the spread of Covid, studies show. In response to that evidence, the Supreme Court tells lawyers and reporters in the courtroom to wear medical masks.

The effect of masks may not be as large as their advocates sometimes claim, and masks can impede communication. So I recognize that well-meaning people can disagree about when they should be worn. Still, Gorsuch’s lack of a mask inside the courtroom seemed needlessly risky and disdainful of his colleagues.