In June 1969, the Supreme Court announced the modern test that governs when the government may punish speech as incitement in Brandenburg v. Ohio. Like in many cases that establish important First Amendment principles, the protagonist was no hero. Clarence Brandenburg was a Ku Klux Klan leader who was prosecuted for a speech that included racist epithets and antisemitic statements. Yet that fact does not rob the case of its force. To this day, lawyers and judges cite “the Brandenburg test” to protect unpopular speech that falls short of incitement of imminent violence.
Now imagine how differently the case would have been received if, at the oral argument three and a half months before the ruling, Justice Hugo Black—who had been a KKK member decades earlier—had sat on the bench wearing a Klan robe instead of his customary judicial robe. By 1969, Justice Black had long been a supporter of civil rights and was a near-absolutist on free speech. Nonetheless, had he attended the oral argument in the grotesque costume I am hypothesizing, no one would have been able to trust his decision to join the unanimous ruling for Brandenburg as an unbiased application of free speech principles.
Something a little bit like that happened over the last week, albeit without the same level of offensiveness. For the last several oral arguments at the Supreme Court, all but one of the Justices in the courtroom have been wearing masks to limit the risk that one of them might unwittingly transmit the highly infectious Omicron variant of COVID-19. The one exception—Justice Neil Gorsuch—has been going unmasked.
In addition to risking his own and his colleagues’ health, that display calls into question Justice’s Gorsuch’s impartiality in the two cases involving the Biden administration’s vaccine requirements that were argued a week ago and decided yesterday. In one of those cases, a 5-4 Court upheld a vaccine mandate for health care workers in the federally funded Medicare and Medicaid programs. In the other case, the Court invalidated an emergency rule promulgated by the Occupational Safety and Health Administration (OSHA) requiring that employers with 100 or more employees require workers to be vaccinated or to be tested for COVID-19 at least weekly and wear masks.
Justice Gorsuch voted to invalidate the Biden administration rules in each case. He and the other dissenting and concurring Justices whose separate opinions he joined cited propositions of administrative law, but his public display calls into question his impartiality. By going unmasked at the oral arguments in the vaccine cases, Justice Gorsuch signaled that he had pre-judged the public health measures to be unnecessary.
Although a properly fitted surgical mask or, better yet, N95 mask or its equivalent, provides substantial protection against COVID-19 for the wearer, the primary beneficiaries of masks are others. Masks trap or impede exhaled respiratory droplets. Because speaking projects exhaled air farther than quiet breathing, it is especially important that masks remain in place when people speak and even more so when they shout or sing.
Fortunately, the Justices and lawyers who appear before them rarely break out into song. Unfortunately, most of the Justices apparently did not get the memo about speaking. Thus, during the vaccine oral arguments, although all of the Justices in the courtroom except Gorsuch wore their masks most of the time, each of the Republican appointees at some point removed their masks to speak. This conduct is all too common. Watch almost any televised sporting event and you’ll see coaches lowering their masks to yell at their players or the officials. Although widespread, such behavior is perverse—like a driver switching off the headlights just when the car turns onto a road with no streetlights.
That said, wearing a mask most of the time is better than not at all. Spread risk is a function of viral load, so every bit helps. And at least the Justices who foolishly lowered their masks to speak kept them in place at other times. The same cannot be said for Justice Gorsuch.
That Justice Gorsuch chooses to go maskless is especially thoughtless given where he sits on the bench—next to Justice Sotomayor, whose diabetes makes her especially vulnerable to COVID-19—and just two seats away from Justice Breyer—who is especially vulnerable because he is 83 years old. True, since the emergence of the Omicron variant, Justice Sotomayor has been participating in oral arguments remotely from her chambers, but that might be partly because she knows she cannot trust Justice Gorsuch to be considerate of her wellbeing. Meanwhile, after Justice Breyer received what has been reported as a false positive result on a rapid test, he is back on the bench, where he risks exposure from Justice Gorsuch (and his mask-lowering colleagues).
Appearance of Bias
Justice Gorsuch’s bare face not only puts his colleagues at higher risk of contracting COVID-19. As I explained above, it also undercuts public confidence in the basis for his votes in the vaccine cases. Whether intentionally or not, Justice Gorsuch’s failure to mask indicates that he either does not believe the public health guidance or thinks he should be free to decide for himself whether to follow it. Either position is inconsistent with open-minded consideration of the cases challenging the administration policies.
But wait. The OSHA rule instructs covered employers to require that their employees vaccinate or wear masks and submit to testing. Justice Gorsuch and all of the other Justices are vaccinated. Thus, even if the OSHA rule applied to the Supreme Court (and it doesn’t), because he is vaccinated, Justice Gorsuch would be in compliance despite going maskless.
Yet to view the matter in such fine detail misses the larger meaning of masks and vaccines. In guidance issued last month, the Court required attorneys in the courtroom to wear masks, regardless of their vaccination status. The eight Justices who mask do so out of consideration for one another and the others in the room. The real lesson here is that the OSHA rule the Court invalidated as an overreach is actually too lenient, not that Justice Gorsuch is doing all that needs to be done to reduce health risk.
To be clear, Justice Gorsuch, along with his colleagues in the majority in the OSHA case and those in dissent in the Medicare/Medicaid case, did not expressly challenge the wisdom of vaccines or masks. In his concurrence in the former, Justice Gorsuch (joined by Justices Thomas and Alito) characterized the issue as a question of “who decides.” He said it would be permissible for states or Congress to enact a workplace vaccine mandate while denying that Congress had delegated the power to do so to OHSA (or, in the Medicare/Medicaid case in which these Justices plus Justice Barrett dissented, to the Secretary of Health and Human Services).
The “who decides” framing was hardly the knockout blow that Justice Gorsuch thought it was. Justice Breyer used the exact same trope to ask whether it was better to rely on the judgment of “an agency with expertise in workplace health and safety” or “a court lacking any knowledge of how to safeguard workplaces.” And each side in each case offered arguments rooted in administrative law and statutory language.
Whatever one makes of the specific back and forth in the opinions, concurrences, and dissents, however, the public will understandably lack confidence in Justice Gorsuch’s votes in the two cases. His masklessness conveyed at least the appearance of bias, which for purposes of the codes of judicial ethics that apply to every court except (inexplicably) the Supreme Court, is as problematic as actual bias itself.
Meanwhile, Justice Gorsuch’s brazen display calls into question the impartiality of the entire Court. Vaccines, masks, and public health measures more generally during the COVID-19 pandemic have been highly politicized, with Republicans much less likely than Democrats to support vaccine or mask mandates and also less likely to get vaccinated or wear masks. The voting pattern on the Court mostly reflects this polarization, while the pattern of personal precautions reflects it precisely.
In the OSHA case, all the Republican appointees voted to invalidate the program of the Democratic administration, while all the Democratic appointees voted to sustain it; in the Medicare/Medicaid case, all but two of the Republican appointees voted to invalidate the program of the Democratic administration, while all the Democratic appointees (as well as Chief Justice Roberts and Justice Kavanaugh) voted to sustain it. As for personal behavior, the Democratic appointees either quarantine away from others (Justice Sotomayor) or wear their masks correctly (Justices Breyer and Kagan), whereas the Republicans either go entirely maskless (Justice Gorsuch) or remove their masks at the least appropriate time (all of the other Republican appointees).
If there is a silver lining in the cloud of respiratory droplets that emerges from Justice Gorsuch’s mouth and nostrils, perhaps it will be transparency. Most close observers and a great many ordinary citizens have long noticed that politics and values play a larger role in determining the outcome of most closely contested Supreme Court cases than do official legal materials. Still, with various Justices giving frequent speeches touting the Court’s objectivity and fair-mindedness, the myth of jurists as neutral referees has considerable remaining force. Justice Gorsuch’s bald-faced display may help unmask the reality.