It would be nice to think that by the time someone has reached a privileged position, they’ve learned how to conduct themselves, how to treat others with courtesy and respect, and become, in this case, supremely adult.
But there is nothing adult about U.S. Supreme Court Justice Neil Gorsuch sitting maskless on the bench while his colleague Justice Sonia Sotomayor — a Type 1 diabetic who is at higher risk of severe disease if she contracts COVID-19 — participates remotely from her chambers.
After NPR’s longtime Supreme Court reporter Nina Totenberg highlighted his behavior in a story this week, there was a lot of righteous outrage directed at Gorsuch.
On social media, people called him all kinds of names: selfish, childish, petty. No argument here, and I suspect the pointed backlash spoke more to the sheer exhaustion from people tired of vaccine opponents and anti-maskers as the pandemic stretches into a third year.
For their part, Gorsuch and Sotomayor released a confusing joint statement Wednesday afternoon that read: “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree with the law, we are warm colleagues and friends.”
Hours later, Chief Justice John Roberts issued his own statement: “I did not request Justice Gorsuch or any other justice to wear a mask on the bench.” NPR stood by its reporting.
I say confusing because the statements read like textbook damage control, and because all of the justices — except Gorsuch, who sits next to Sotomayor on the bench — mask up.
Plus, “warm colleagues and friends” don’t need to be asked, by anyone, to do what needs to be done to protect one another. And they sure don’t need clarifying statements.
In an opinion piece for CNN, Kara Alaimo wrote that Gorsuch’s behavior was a shocking display of male entitlement.
Agreed, and let’s take that a step further: It’s white male entitlement, because as it happens, Sotomayor, a fellow Puerto Rican, is the only woman of color on the bench. And, whew, the optics!
But while all eyes and ire seemed to land on Gorsuch, mine lingered longer on the other justices, because from the hallowed grounds of the White House to the more common spaces of our everyday workplaces, bad behavior can’t exist without enablers, not easily anyway. Even when — perhaps especially when — the enabling comes in the form of silence or inaction.
Think about it: Trump couldn’t have been Trump without a cadre of enablers who are still in power.
That problematic colleague at your office couldn’t continue to be a problem if the enablers didn’t dismiss or downplay their behavior.
And as such, Gorsuch wouldn’t be able to act so coldheartedly without the implied or explicit consent of his fellow justices, including Sotomayor apparently, who — if that statement is any indication — gave him a pass to keep the peace. (But then the burdened are often expected to set aside their own comfort and safety.)
And so what I wondered most was: Where were the other (masked) justices when Gorsuch apparently decided his beliefs and comfort outweighed everyone else’s on a court that has long prided itself on at least the appearance of decorum?
“They could have all agreed to do everything by Zoom or send Gorsuch to his chambers only,” said Anna O. Law, a professor of political science and the Herbert Kurz Chair of Constitutional Rights at CUNY Brooklyn College.
I’d called Law and other experts to ask if maybe I was missing some special section of Roberts’ Rules of Spinelessness that would have prevented the chief justice from using his position to find another way to get everyone on the same page. Turns out, it’s only our universal habit of not wanting to make waves or hold people accountable that’s mostly at play here.
“This can be regarded as conduct unbecoming; still, there’s no court or tribunal that can sanction Justice Gorsuch — or any Justice — for such (or other) conduct,” Doron M. Kalir, a clinical professor of law at the Cleveland-Marshall College of Law, wrote in an email.
Of the five judicial scholars that I contacted, all said the stunning lack of collegiality is a huge departure from what the court has long prided itself on.
Remember, this is the same institution where Justices Antonin Scalia and Ruth Bader Ginsburg were close friends despite their clashes on the court and in opinions.
“They all value collegiality, so I think that they are all waiting for some direction and leadership from the Chief Justice,” said Cedric Merlin Powell, the Wyatt Tarrant & Combs Professor of Law in the University of Louisville’s Brandeis School of Law.
“I think that if it gets to a point where the Court’s legitimacy is being challenged because of Gorsuch’s carelessness then some action will be taken. I think that the Justices will just wait and try to avoid conflict by making adjustments, like going remote if Gorsuch persists.”
I thought that was a clear-eyed, if optimistic, conclusion. What I didn’t count on was that less than 24 hours later, the adjustment would be acquiescence — and a slew of official statements.
But then, from supermarkets to the Supreme Court, we now live in a world where we continue to make adjustments and accommodations for people who have no regard for the greater good, who have to be asked and begged and cajoled to do the right thing because we value the appearance of harmony over the intentional practice of collective humanity.