Supreme Court Justice Neil Gorsuch has no mask despite Covid spike

Associate Justice Neil Gorsuch poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.

Erin Schaff | Pool | Reuters

One of these justices is not like the others.

Supreme Court Justice Neil Gorsuch did not wear a mask for a hearing Tuesday, even as all the other justices in attendance did so, and as two of his colleagues appeared remotely due to apparent concerns about Covid-19.

Gorsuch has failed to wear a mask on the bench during oral arguments since Friday, while the other justices who physically appeared for arguments all did so in apparent recognition of the spread of the omicron variant of the coronavirus.

That spread has coincided with a sharp increase in the number of Washington, D.C., residents and other Americans infected with Covid and hospitalized as a result of the virus in recent weeks. On Tuesday, the United States broke its year-old record for Covid-related hospitalizations, with nearly 146,000 people in a hospital.

Gorsuch and all other eight justices have been vaccinated and received boosters for Covid.

Last week, Justice Sonia Sotomayor, who normally sits next to Gorsuch during hearings, and who until recently had been the sole justice to wear a mask, began participating in arguments remotely through an audio connection to her chambers last Friday.

Sotomayor is diabetic, putting her more at risk from Covid.

On Tuesday, Justice Stephen Breyer also began appearing remotely. Breyer, who at 83 years old is the high court’s oldest member, normally sits on the other side of Sotomayor when the court is in session.

Breyer and seven other justices, unlike Gorsuch, wore masks last Friday when they heard hours of oral arguments in cases involving challenges to the Biden administration’s mandates for Covid vaccinations for workers at large employers and health-care providers. Two lawyers who participated in those arguments did so remotely because they had contracted Covid.

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In contrast to Gorsuch, reporters and lawyers who attend Supreme Court hearings must wear at least N95 masks, not less protective cloth masks.

The Washington Post deputy editorial page editor Ruth Marcus criticized Gorsuch in a column Friday, writing that “Like his colleagues, he had a choice about whether to wear a mask.”

“Unlike them, he chose poorly,” Marcus wrote.

During Tuesday’s session, the other six justices besides Gorsuch, including Chief Justice John Roberts, kept their masks on, only removing them at times to sip water or sometimes to ask questions.

The Supreme Court’s media affairs office did not immediately respond to a query from CNBC about Gorsuch.

The high court only in October began hearing arguments in person after a more-than-year-long span in which they conducted proceedings over the phone because of the coronavirus pandemic. The Supreme Court building remains closed to the public because of the virus.

Washington Mayor Muriel Bowser in late December reinstated a mandate requiring that masks be worn in public indoor spaces, because of the rise in Covid cases in the District.

But the federal government sets its own rules for federal buildings, and the Supreme Court, as a separate branch of the government, determines its own virus-related rules.

On Dec. 1 when the omicron variant first was detected in the United States, there were 131 newly reported cases of Covid in Washington, with 97 people hospitalized with the virus. On Monday, there were 2,365 new cases of Covid reported in Washington, with 901 people hospitalized there.

– Additional reporting by CNBC’s Sevanny Campos