The Washington PostDemocracy Dies in Darkness

A single word sparks a crossfire between the Supreme Court, NPR and its star reporter Nina Totenberg

Associate justices Sonia Sotomayor and Neil M. Gorsuch. (Erin Schaff/Pool/The New York Times/AP)
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correction

A previous version of this article inaccurately rendered a quote from Nina Totenberg’s original NPR report. The sentence, “NPR’s Nina Totenberg reported on Tuesday that Chief Justice John G. Roberts Jr. had, ‘in some form or other, asked the other justices to mask up’ in the courtroom,” should not have included the words “or other.” This post has been corrected.

A single word sparked a dispute this past week that ensnared at least three Supreme Court justices, a veteran NPR reporter, and eventually her newsroom’s public editor.

It may all come down to the use of the word “asked.”

NPR’s Nina Totenberg reported on Tuesday that Chief Justice John G. Roberts Jr. had, “in some form, asked the other justices to mask up” in the courtroom. The broadcast and article caused a small sensation because it seemed to explain why the justices had all appeared in masks during arguments over vaccine mandates this month, with two conspicuous exceptions: Neil M. Gorsuch, the only bare face on the bench; and his next-seat neighbor Sonia Sotomayor, who was not even in the courtroom and participated remotely from her office.

According to Totenberg, Roberts had asked the justices to mask up at the hearing out of concern for Sotomayor, who has diabetes and thus an elevated risk of becoming seriously ill from covid-19.

The thrust of the article was Gorsuch’s apparent indifference to the request, implying his decision to show up maskless amounted to open defiance of the chief justice, and forced his at-risk colleague to work remotely. Totenberg suggested Gorsuch’s behavior was consistent with his divisiveness on the court: Since he was appointed by President Donald Trump in 2017, she reported, he “has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court.”

It seemed like a nice scoop for NPR. Until Roberts dissented.

In an unusual response to a press report, the chief justice said in a statement on Wednesday that he “did not request Justice Gorsuch or any other justice to wear a mask on the bench.” (Gorsuch and Sotomayor also released statements denying that Sotomayor had asked Gorsuch to wear a mask, though NPR hadn’t reported she did.)

The statement quickly became fodder for criticism of NPR and Totenberg, who has covered the Supreme Court and legal issues for NPR since 1975. Fox News carried several segments on the dispute. On social media, the hashtag #DefundNPR trended.

Totenberg and NPR offered a rejoinder on Wednesday. “NPR stands by its reporting,” Totenberg wrote in a news story reporting on the reaction to her original news story.

And there it stood — until NPR’s public editor, Kelly McBride, weighed in with an assessment late Thursday. McBride, who functions as NPR’s ombudsman and has no authority over its newsroom, recommended that the organization issue a “clarification” to Totenberg’s story — not quite as serious as a correction but still nothing any reporter wants under her byline.

McBride suggested that despite the definitive language in her article, Totenberg wasn’t sure how Roberts conveyed his concerns to his fellow justices — whether he “asked” them to wear masks or made his thoughts known in a subtler way. She quoted Totenberg as saying, “If I knew exactly how he communicated this I would say it. Instead I said ‘in some form.’ ”

McBride concluded that using the word “asked” was “inaccurate” and “misleading,” and wrote that NPR should clarify the article accordingly.

Totenberg seemed to reject the advice, telling the Daily Beast on Thursday night that McBride “can write any goddamn thing she wants, whether or not I think it’s true. She’s not clarifying anything!”

And indeed, as of Friday afternoon, there is still no clarification or correction on Totenberg’s original article. But both NPR and Totenberg have seemed tacitly to acknowledge the problem elsewhere. In a follow-up report Tuesday afternoon on “All Things Considered,” Totenberg avoided the word “asked” and said Roberts had merely “suggested” masks be worn in the courtroom. Neither she nor NPR indicated that her characterization had changed from her report that morning.

On Friday, NPR spokesperson Isabel Lara reiterated the organization’s support for Totenberg. She said McBride “is independent and doesn’t speak on behalf of NPR.”

Lara added, “Someone can ask without explicitly asking. Someone can say, ‘This person doesn’t feel comfortable being around people who aren’t masked’ or some other permutation of that and the listeners get the message.”

Totenberg has been widely celebrated for her long career covering the court, but has stepped into controversy before. Her long friendship with the late justice Ruth Bader Ginsburg raised questions about conflicts of interest in her reporting. Totenberg covered Ginsburg for decades but rarely revealed to listeners her personal relationship.

Totenberg declined to comment to The Post on Friday, but McBride offered this: “Nina is a legendary reporter, and I respect the hell out of her. I could tell that she wasn’t pleased with my analysis, but she was nothing but professional in our interactions. And, I still think her original piece overstated what her reporting showed and needs to be clarified.”

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