In August 2020, I wrote a provocative op-ed, titled "A Supreme Court Divided Cannot Stand. John Roberts Must Step up or Step Off." At the time, the Supreme Court had more leaks than the Titanic, and I felt decisive action was needed to right the ship. What was the first step? Roberts must speak out.
First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. He should declare these leaks unacceptable, and announce that he is investigating the breaches of confidentiality. He cannot simply deny reality. The Court needs an emergency tourniquet to stop the bleeding.
I'm pleased to report that Chief Justice Roberts has followed my advice--or something like that.
In response to #Maskgate, we have received an unprecedented response from the Court.
First, Justices Sotomayor and Gorsuch released a joint statement:
Just in: Statement by Justice Sotomayor and Justice Gorsuch: Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.
Just in: Statement by Justice Sotomayor and Justice Gorsuch:
Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.— Robert Barnes (@scotusreporter) January 19, 2022
But this statement did not address the controversy. The leaked reports said Sotomayor asked Roberts to talk to Gorsuch, or something like that. The #Maskgate conspiracy grows!
Second, Chief Justice Roberts issued a statement!
"I did not request Justice Gorsuch or any other Justice to wear a mask on the bench."
MORE JUST IN on Maskgate, this time from the Chief Justice: "I did not request Justice Gorsuch or any other Justice to wear a mask on the bench."
— Robert Barnes (@scotusreporter) January 19, 2022
Good for Roberts, Sotomayor, and Gorsuch. Leading members of the Supreme Court press corps relied on inaccurate sourcing, and they got burned. I am grateful the Court is fighting back against leaks and disinformation. The Chief does not need to resign, for now at least.
But--there is always a but--putting out a statement now creates a precedent. What happens if there there are future leaks, and the Court does not reply? Do we then presume the leaks were accurate, or that the Justices could not agree on a response?
Now, can we please let #Maskgate die? This controversy is so, so stupid.
Update: Alas, we are not done yet. NPR is standing behind Totenberg's report:
NPR stands by my reportinghttps://t.co/eEtiNgMQet
— Nina Totenberg (@NinaTotenberg) January 19, 2022
Three Supreme Court justices issued statements Wednesday addressing an NPR story about relations among the justices. On Tuesday, NPR reported that that Justice Sonia Sotomayor, a longtime diabetic, had indicated to Chief Justice John Roberts that because of the Omicron surge, she did not feel safe being in a room with people who are unmasked, and that the chief justice, "in some form asked the other justices to mask up."
On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask. NPR's report did not say that she did. Then, the chief justice issued a statement saying he "did not request Justice Gorsuch or any other justice to wear a mask on the bench." The NPR report said the chief justice's ask to the justices had come "in some form."
So Roberts did not "request Justice Gorsuch or any other justice to wear a mask on the bench." But Roberts "in some form asked the other justices to mask up." Where? In conference, when they weren't on the bench? Or did Roberts make his request without actually asking? Did he point at his mouth and make a pantomime motion? I don't even know what we are arguing about anymore.
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