By David Leonhardt
When the Supreme Court justices emerged from the red drapes at the front of the courtroom Jan. 7 and took their seats — to hear arguments about President Joe Biden’s vaccine mandate — all but one of the justices there were wearing masks. The exception was Neil Gorsuch.
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.
“When you’re charged with working together for most of the remainder of your life, you have to create a relationship,” Sonia Sotomayor said a few years ago, describing her welcoming of Brett Kavanaugh. “This is our work family.”
Gorsuch had to know that his masklessness could make other justices uncomfortable, including 83-year-old Stephen Breyer and Sotomayor, 67, who has diabetes, a COVID risk factor. Sotomayor sits next to Gorsuch on the bench and, notably, chose not to attend the Jan. 7 argument in person. She participated remotely, from her chambers.
When Ruth Marcus of The Washington Post asked a Supreme Court spokesperson whether Sotomayor had done so because Gorsuch was maskless, Marcus got no response.
One of the few public comments from somebody close to Gorsuch came from Mike Davis, a conservative activist and former Gorsuch clerk. On Twitter, Davis defended his former boss by writing, “We know cloth masks don’t [work].” It was a statement that managed to be 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.
“Wearing a mask is the decent thing to do,” Marcus wrote in her Washington Post column, “especially when you are around vulnerable individuals.” This past week, Gorsuch again appeared without a mask at the court.
His decision seems emblematic of a country where partisan loyalty can trump COVID reality. It also seems emblematic of a court on which the justices are increasingly willing to behave as partisan actors rather than impartial judges.
‘Wildly incorrect’
During the first hour of the two-hour argument Jan. 7, Sotomayor listed the evidence of COVID’s continuing threat, to illustrate the benefits of a vaccine mandate. (The court ruled in the case Thursday, blocking Biden’s vaccine mandate for large employers, while allowing a narrower one for health care providers. Gorsuch opposed both mandates, while Sotomayor favored both.)
In making the case for mandates, Sotomayor first noted that COVID cases were surging and hospitals were near capacity. She then turned her attention to children: “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”
That last sentence is simply untrue.
PolitiFact called it “way off.” Khaya Himmelman of The Dispatch described it as false and misleading. Daniel Dale of CNN wrote that Sotomayor had made “a significant false claim.” Glenn Kessler, The Washington Post’s fact checker, called it “wildly incorrect.”
Fewer than 5,000 U.S. children were in the hospital with COVID in the past week, and many fewer were in “serious condition” or on ventilators. Some of the hospitalized children probably had incidental cases of the virus, meaning they had been hospitalized for other reasons and tested positive while there.
COVID is overwhelmingly mild in children, even those who are unvaccinated. The risks are not zero, and they have risen during the current wave of infections, especially for children with major underlying health problems. But the risks remain extremely low.
Consider these numbers: Over the past week, about 870 children were admitted to hospitals with COVID, according to the Centers for Disease Control and Prevention. By comparison, more than 5,000 children visit emergency rooms each week for sports injuries. More than 1,000 are hospitalized for bronchiolitis during a typical January week.
Similarly, the risk of COVID hospitalization for children — even in recent weeks — has been much lower than the risk from the respiratory virus known as RSV, as public health researcher Katelyn Jetelina has shown.
Or consider this: Vaccinated seniors are at much more risk of severe COVID illness than unvaccinated children.
Sotomayor’s statement may not have been central to the case. But it was not a random error, either. Many other Americans on the left half of the political spectrum have also been exaggerating COVID’s risks to children. As the authors of a Gallup poll last year wrote, “Republicans consistently underestimate risks, while Democrats consistently overestimate them.”
I understand that these exaggerations often stem from an admirable desire to protect children from harm. But the result has been the opposite: The pandemic’s disruptions have led to lost learning, social isolation and widespread mental health problems for children. Many American children are in crisis — as a result of pandemic restrictions rather than the virus itself.
The Supreme Court’s Jan. 7 session was striking because it highlighted both halves of the country’s partisan-based self-deceptions. Many conservatives are refusing to wear masks — or, even worse, refusing to be vaccinated — out of a misplaced belief that COVID is harmless. Many liberals are sensationalizing COVID’s risks out of a misplaced belief that it presents a bigger threat to most children and vaccinated adults than continued isolation and disruption do.
Partisanship, as some political scientists like to say, is a helluva drug.