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Opinion Some personal testimony in the matter of NPR v. the Supreme Court

From left, Chief Justice John G. Roberts Jr., Justice Sonia Sotomayor, Justice Clarence Thomas, Justice Neil M. Gorsuch and Justice Stephen G. Breyer at the Supreme Court in D.C. on June 1, 2017. (Jonathan Ernst/Reuters)
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Friends of Supreme Court Justice Neil M. Gorsuch spent recent days in high dudgeon (is there another kind of dudgeon?) over the wording of an NPR report concerning the jurist’s masklessness. I found this highly amusing — self-righteous Washington hypocrisy can be funny — due to my personal experience on the receiving end of Gorsuch’s own journalism. As I will explain, he is not a man who believes in correcting mistakes.

But first, the backstory.

On Jan. 7, my colleague at The Post, the distinguished Supreme Court observer Ruth Marcus, noted that Justice Sonia Sotomayor had been absent from the bench during oral arguments. Marcus asked if that might have had something to do with the fact that Gorsuch, who sits next to Sotomayor, was the only member of the court not wearing a mask, despite the relentlessness of the omicron variant, which has been pushing the covid-19 death rate to more than 1,000 Americans per day.

Sotomayor has Type 1 diabetes and is over 65 years old, which places her at elevated risk of serious, even fatal, complications should she be infected by the coronavirus. On the day she would have spent hours seated next to Gorsuch, she instead participated in court proceedings remotely.

Opinion: Where was Justice Neil Gorsuch’s mask?

Enter Nina Totenberg, veteran court reporter for NPR. When she followed up on the question with her sources, Totenberg learned that Chief Justice John G. Roberts Jr. had communicated “in some form” that the omicron spike was a concern that might lead Sotomayor’s colleagues to change their practice and wear masks after the holiday break.

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As a radio reporter, Totenberg is not allowed to speak in sentences as mushy as the one I just wrote. So in a Jan. 18 report, she said: “The situation had changed,” because of omicron, “and, according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form or other, asked the other justices to mask up.”

Cue the dudgeon.

From the chief justice, who hates all suggestions of disunity on the court, came a denial that anything was “asked” for. Gorsuch and Sotomayor expressed their mutual concord and respect. Totenberg changed the verb “asked” to “suggested” in a later version of her story, and pointed to the phrase “in some form or other” as a clear indication that she was not claiming perfect knowledge as to the exact wording or tenor of Roberts’s communication.

I hoped that these fudging denials would be followed by another message from Gorsuch, in which he might apologize to his friend Sotomayor for somehow missing her concerns, while assuring her that he would take her concerns to heart in the future. We both grew up in the Denver area in the 1960s and 1970s, so I assumed that he and I must have absorbed the same lessons about common courtesy and good manners. I hated to think that a Denver boy would deliberately ignore the worries of a neighbor in compromised health. At the very least, I would have expected a chivalrous offer to remain in his chambers, participating remotely, while the other eight justices agreeably masked up.

But no. Gorsuch has been silent while his supporters have gone nuts over that Totenberg verb: “asked.” Of course, Roberts could clarify the whole thing by telling us what he did say, not just what he didn’t say.

Which brings me, finally, to the Gorsuch standard of journalism.

In November 2004, I published a rather ho-hum piece making a far-from-original case that progressives had become too reliant on the courts for victories, at the cost of effective political organizing. Though it might take time, I said, the rise of more conservative courts could strengthen progressives by making them build from the grass roots.

Somehow, the piece caught the eye of Gorsuch, in private practice but marked out for bigger things. Donning his journalist cap, he wrote an essay for National Review in February 2005 approving of the argument, while declaring that I was “a self-identified liberal.” I wrote to him, thanking him for noticing my work but politely pointing out that I don’t describe myself as liberal — the only conceivable definition of his phrase.

In his reply, which I did not save, Journalist Gorsuch said essentially that such a trifle doesn’t matter. And that was that … until, during his Senate confirmation for the Supreme Court, he persisted in calling me “a self-described liberal,” which was no closer to being true in 2017 than in 2005. At which point I realized that accuracy is evidently not an important value for Gorsuch.

I would never have mentioned this. But then Team Gorsuch began nitpicking and hairsplitting, and now the story seems relevant.

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