Dahlia Lithwick captures the full humiliation of the Supremes. This country is so screwed up:
We are now six days into mask-mania at the U.S. Supreme Court. It all started during last Friday’s oral arguments in the vaccine-or-test mandate cases when Justice Neil Gorsuch was reportedly the only justice not masking throughout the session, though evidently Justices Sam Alito and Clarence Thomas removed their masks for extended periods. The masking protocol at the high court has long been a bit haphazard: When the justices began to hear cases in person again in October, Justice Sonia Sotomayor was the only justice wearing a mask. But the other justices all began to mask last Friday, the first sitting since the omicron surge, after more guidance from the Centers for Disease Control and Prevention. Likely not by coincidence, Sotomayor participated telephonically last Friday. (She has diabetes, which is a comorbidity factor with COVID, even the milder forms.) The Supreme Court’s spokeswoman also confirmed to Slate that Sotomayor then participated remotely in conference, where only the justices are present.
The pattern has continued with slight modifications since then: On Monday, Gorsuch was the only one to take the bench without a mask according to the AP’s Mark Sherman, and Sotomayor again participated remotely. Gorsuch opted not to wear a mask for oral arguments again on Tuesday when both Justices Sonia Sotomayor and Stephen Breyer dialed in for the sessions. Breyer had a false positive test and was staying home out of an abundance of caution, but on Wednesday, we learned that Sotomayor would stay home all week.
All of this has launched a high-octane debate over whether Gorsuch is a monster or a hero of liberty. But all that strikes me as not quite the point. The point is not what Gorsuch’s lack of masking means; the point is that the justices get to do whatever they want, whenever they want to, and that they do so without any obligation to explain why. The real problem with the court’s masks-optional policy? It reflects the court’s much larger rules-optional policy on everything pertaining to judicial conduct.
Last Friday, the Washington Post’s Ruth Marcus published a scorching critique of Gorsuch’sdecision to “break with his colleagues and disdain the mask,” connecting it to his libertarian record, his comments in the vaccine arguments about coercive government attempts to “control” the citizenry, and the breakdown of institutional norms that mean that the trivial inconvenience of wearing a mask out of respect for a high-risk colleague (Sotomayor) represents “intolerable incursions on liberty.”
Yvette Borja noted that given that Washington Mayor Muriel Bowser reinstated an indoor mask mandate for all public indoor spaces, “Gorsuch would be required to wear one basically anywhere else in D.C., from the grocery store to the pharmacy to his next speaking engagement at the Trump International Hotel,” even if he does not have to wear one on the bench. Like Marcus, she assumed that he is motivated by the symbolic value of owning the libs. “By publicly refusing to do so, Gorsuch aligns himself with some of the pandemic’s most insufferable people: the trolling culture warriors who are proud not to give a shit about anyone but themselves,” she wrote.
To be sure, we have heard from absolutely none of the justices themselves on the subject. The court’s spokeswoman has confirmed that Sotomayor is participating remotely but will not say why. The office did confirm that Breyer phoned into arguments because of his COVID test results. But the public information office will not explain why Gorsuch feels no need to mask around several colleagues who are high risk by virtue of their co-occurring conditions or their ages—despite the court’s express rule providing that everyone else who attends every sessionmust wear at least N95 or KN95 masks.
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But the hyperfocus on Gorsuch’s unknown motivations strikes me as nearly as much of a distraction as the hyperfocus on who said incorrect things at oral argument, and who sought changes in official transcripts about what we thought we heard. Justices say mistaken things at oral argument all the time, especially when they are hearing fast-tracked cases. The big lesson here isn’t about verbal errors at argument or Gorsuch’s lack of concern for his colleagues. The reason his noncompliance with the court’s formal mask rule is news is because it is yet another example of the justices having rules but refusing to apply them to themselves. That’s the real issue with regard to masks, just as it is to judicial ethics, and that’s the reason why this debacle is damaging the court’s public standing. Several smart lawyers have written to ask me why Chief Justice John Roberts cannot simply order his colleagues to follow the same mask requirements imposed on everyone else. The short answer is that he cannot order his colleagues to do anything that falls within the realm of ethical behavior.
For decades, court reformers—and most recently President Joe Biden’s commission on court reform—have noted that the court’s financial and ethical rules are purely advisory, that nobody needs to follow them and that the justices will not enforce them against one another. When it comes to adopting a set of rules governing how the nine justices conduct themselves when giving speeches, or engaging in public activities, each of the nine is a law unto themselves. Efforts to remedy that, in the interest of making the court more accountable and also more legitimate, are persistently rebuffed. To extend Marcus’ analysis about Gorsuch, nobody is the boss of Gorsuch because nobody is the boss of any of the justices.
Two short weeks ago, in his annual state of the judiciary report, Roberts flicked obliquely at the connection between public confidence in the court and the need for judicial independence. Unsurprisingly, and in keeping with much of the lawyerly discourse around judicial behavior, he urged that public confidence in the court demands judicial independence at all costs. Judicial independence, in other words, is an end in itself, and public regard for the institution is, at best, a second-order concern. Roberts thus used the national decline in confidence in the courts and the existence of financial misconduct and workplace “incivility and disrespect” on the federal bench to insist that the courts themselves could handle it, and to decry efforts to exert “inappropriate political influence” on the courts’ procedures. Instead, he urged that “decisional independence is essential to due process, promoting impartial decision-making, free from political or other extraneous influence.” Roberts cited Chief Justice William Howard Taft, saying that he “was prescient in recognizing the need for the Judiciary to manage its internal affairs, both to promote informed administration and to ensure independence of the Branch.” Even the most obvious and necessary efforts to regulate judicial conduct are forever deemed a threat to the Supreme Court justices’ and their independence.A
When Ruth Marcus wrote last week about the way in which Gorsuch’s refusal to don a mask “goes to the heart of our fraying social fabric,” the issue was not just that Gorsuch has arrogated to himself the authority to determine, set, and model public health behavior. That is very much in keeping with the mood of the court and the mood of the country. The real issue is that the court as an institution has put a mask rule into effect, has allowed justices to evade it, has failed to offer any coherent explanation for why one justice has been exempted, and has thus launched another toxic and possibly unnecessary public debate. The court hasn’t just declined to be transparent about the application of its own rules to itself; it also feels no obligation to explain the breach to anyone. Into that silence falls institutional criticism that further erodes public confidence.
One way to describe this is “judicial independence”—John Roberts’ pledge to the nation that the justices answer to nobody but are driven by the imperative they take upon themselves, in the words of Taft, “the duty to remove, as far as possible, grounds for just criticism of our judicial system.” But what happens when the justices, with ever-increasing frequency, decline to evince concern for the public’s worries and uncertainties about the judicial system? What happens when day after day of raging debate over one justice’s refusal to adhere to a court rule is met with stony silence by the court? If the justices have no obligation to be ethical, or even civil, around a pandemic that has killed more than 800,000 Americans, do they at least have the burden to explain? Evidently not.
The other word for this behavior is “judicial immunity,” an immunity that requires no explanation. The court—while debating the necessity of COVID mitigation efforts—declined to enforce its own COVID mitigation efforts. Then, in the face of politically polarized reaction, the court declined to tell us why. Justices will be quick to blame the media for merely reporting on their behavior—Justice Sam Alito did so again during the vaccine arguments themselves. But when the media asks for clarity, the court fails to answer. Perhaps the problem here transcends Gorsuch, who refuses to accept that he answers to anyone. Perhaps the bigger problem is that the Supreme Court itself agrees with him, even as it declines to tell us why.
Judicial immunity. Good phrase. And these people have the nerve to wring their hands about “elitism.”
*And she doesn’t even mention the egregiously unethical conduct by Justice Thomas’s wife Ginni.
The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, whose wife, Virginia (Ginni) Thomas, is a vocal right-wing activist. She has declared that America is in existential danger because of the “deep state” and the “fascist left,” which includes “transsexual fascists.” Thomas, a lawyer who runs a small political-lobbying firm, Liberty Consulting, has become a prominent member of various hard-line groups. Her political activism has caused controversy for years. For the most part, it has been dismissed as the harmless action of an independent spouse. But now the Court appears likely to secure victories for her allies in a number of highly polarizing cases—on abortion, affirmative action, and gun rights.
Many Americans first became aware of Ginni Thomas’s activism on January 6, 2021. That morning, before the Stop the Steal rally in Washington, D.C., turned into an assault on the Capitol resulting in the deaths of at least five people, she cheered on the supporters of President Donald Trump who had gathered to overturn Biden’s election. In a Facebook post that went viral, she linked to a news item about the protest, writing, “love maga people!!!!” Shortly afterward, she posted about Ronald Reagan’s famous “A Time for Choosing” speech. Her next status update said, “god bless each of you standing up or praying.” Two days after the insurrection, she added a disclaimer to her feed, noting that she’d written the posts “before violence in US Capitol.” (The posts are no longer public.)
Later that January, the Washington Post revealed that she had also been agitating about Trump’s loss on a private Listserv, Thomas Clerk World, which includes former law clerks of Justice Thomas’s. The online discussion had been contentious. John Eastman, a former Thomas clerk and a key instigator of the lie that Trump actually won in 2020, was on the same side as Ginni Thomas, and he drew rebukes. According to the Post, Thomas eventually apologized to the group for causing internal rancor. Artemus Ward, a political scientist at Northern Illinois University and a co-author of “Sorcerers’ Apprentices,” a history of Supreme Court clerks, believes that the incident confirmed her outsized role. “Virginia Thomas has direct access to Thomas’s clerks,” Ward said. Clarence Thomas is now the Court’s senior member, having served for thirty years, and Ward estimates that there are “something like a hundred and twenty people on that Listserv.” In Ward’s view, they comprise “an élite right-wing commando movement.” Justice Thomas, he says, doesn’t post on the Listserv, but his wife “is advocating for things directly.” Ward added, “It’s unprecedented. I have never seen a Justice’s wife as involved.”
It’s an outrage. But since the court is answerable to no one that’s just the way it is.