SCOTUS Mythology Exposed

We deserve better.

The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States

In his NYT newsletter earlier this week (Maskless and Inaccurate), David Leonhardt raises some issues about the recent SCOTUS hearings about the Biden administration’s vaccine mandates that have struck me as well: that the Justices are behaving in ways that underscore their underlying partisanship.

In regards to Justice Gorsuch:

When the Supreme Court justices emerged from the red drapes at the front of the courtroom last Friday and took their seats — to hear arguments about President 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.


Gorsuch had to know that his masklessness could make other justices uncomfortable, including the 83-year-old Stephen Breyer and the 67-year-old Sotomayor, who has diabetes, a Covid risk factor. Sotomayor sits next to Gorsuch on the bench and, notably, chose not to attend Friday’s 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.

And then there was Justice Sotomayor, who stated the following

We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.

This was, well, wrong by several orders of magnitude.

As Leonhardt notes:

In making the case for mandates last week, 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.”

Both of these examples brought to mind Chief Justice Roberts infamous statement in a case about districting back in 2017:

the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.

Dare I say, yes, it would appear to clearly be his lack of adequate educational background on the subject. Indeed, it was an agonizing ridiculous thing to say which maligned real academic work that did not deserve such casual dismissal (but fully unpacking that utterance is a different discussion). Such behavior about, say, chemistry in a water quality case would be a bit more obvious.

There are, no doubt, scores of such examples that could be cited, both from oral arguments and from written opinions, but since this is not an ocean in which I commonly swim, I can’t conjure more readily.

These three examples are great, and perhaps sobering, reminders that while we treat SCOTUS Justices like they are quasi-philosopher kings, they simply aren’t. They are all highly educated, but it is worth noting fairly narrowly educated, and approach their jobs highly influenced by the partisan world around them. Is there any doubt that Gorsuch and Sotomayor both have had their views of the pandemic shaped heavily by their own media diets?

If SCOTUS is making decisions, at least in part, the same way Joe Q. Public is, that is problematic given the amount of power that the institution has acquired over time. The vaccine mandate case is a case in point, insofar as it is the inability of Congress to act coherently that forces the executive to try and address a national crisis via executive orders and bureaucratic rule-making powers which, in turn, leads to the judiciary getting to decide what the rules can be.

The mythology of American politics is that courts, especially SCOTUS, are run by sages who transcend basic politics and settle things based on well-developed legal theories. This is certainly the way the Court is usually talked about in the press (and often here at OTB). But, the more one pays attention, the more it seems that the Court is what it is often accused of being: a group of partisan-influenced individuals who are not as sagelike as many, themselves included, like to think.

Quite frankly, from afar it looks like at least some of the Justices did less research about Covid than I might do for a given blog post. That is not a reassuring circumstance, especially given the abdication of duty (or, at least, institutional dysfunction) we have seen for quite some time in the Congress. This is a broad, long-term problem, especially given the lack of accountability of the Court, given lifetime appointments, and the utter disconnect between the electorate and the Court because of the Electoral College (and popular vote inversions) and the unrepresentative nature of the Senate.

In terms of this recent hearing, I have to agree with Leonhardt’s conclusion:

Last week’s Supreme Court 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.

FILED UNDER: Democracy, Law and the Courts, Supreme Court, US Constitution, US Politics, , , , , , , , , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. Bnut says:

    “We know cloth masks don’t [work].”

    So wear an N95 you prick. You can find one, you are a SCJ, not one of us common proles, MANY of whom have them. Straight aholes, all of them.

    *I am aware this was not from the good Justice himself. You can’t tell me he wouldn’t say the same if it wouldn’t give away the charade of his argument.

  2. gVOR08 says:

    I recommend Adam Serwer’s article at The Atlantic. He does a very clear job that a) they’re applying a non-delegation theory because they want to keep it available for destroying the regulatory state (and destroy the ability of the government to function), and b) they’ve drunk the conservative cool aid and actually see vaccination as somehow a liberal imposition on poor innocent . And, as you note, non-delegation in effect says decisions should be made by legislators, and failing that by judges, not by subject matter experts in the relevant agencies.

    And as I’ve read elsewhere, they’ve applied the major questions doctrine in an unprecedented way. In the past it’s been applied to cases of ambiguous statutory language, and the emergency powers in the OSHA act are pretty clear.

  3. Sleeping Dog says:

    It should be noted that the SC ruling on vax mandates enforced through OSHA is an early chipping away at the ability of congress to defer rule making to the executive through a process that has been outlined legislatively. The result that the conservatives on the court seek, is to strangle the ability of the federal government to intervene for the benefit of the general public.

  4. gVOR08 says:

    @gVOR08: Didn’t have time earlier to find this article by Ian Millheiser at VOX subtitled The Court is barely even pretending to be engaged in legal reasoning. on SCOTUS’ application of the major questions doctrine.

  5. Gustopher says:

    Is there any doubt that Gorsuch and Sotomayor both have had their views of the pandemic shaped heavily by their own media diets?

    I’m inclined to be more forgiving of Sotomayor, as it is true that pediatric hospitals are being overrun by covid, and it’s easy to take that knowledge and mishear other snippets and get the numbers wrong. Omicron is either more of a problem for kids, or there’s a lot more of it and that is a problem.

    We also have no evidence that she would dig in and double down on her incorrect claim if presented with other information.

    Meanwhile, Gorsuch is repeating the long debunked mask lies when there’s plenty of information available and he has doubtless heard of the other side. Masks have been CDC guidance for ages, and if he thinks cloth is ineffective, there are better masks.

    If masks are tyranny, I can only assume he spends his weekends looking for ‘no shirts, no shoes, no service” signs, taking off he shirt and shoes, and demanding service.

  6. Dude Kembro says:

    The mythology of American politics is that courts, especially SCOTUS, are run by sages who transcend basic politics and settle things based on well-developed legal theories. This is certainly the way the Court is usually talked about in the press (and often here at OTB).

    Like why tho? It’s been clear for a while now that only the court’s liberals are being honest about their results-oriented activism, while the court’s conservatives continue to piss on the constitution while telling America its raining.

    They’re textualists except when rewriting laws and regulations from the bench to meet conservative goals, as they did with the OHSA ruling.

    They’re federalists, except when stepping into stop a state’s vote counting as in Bush v. Gore.

    They exercise judicial restraint, except when they gutted the Voting Rights Act in Shelby v. Holder to benefit the GQP.

    They’re impartially calling balls and strikes, except when they invented corporate personhood out of thin air to reward the vast right-wing conspiracy’s anti-Hillary witch hunt.

    They originalists, except when they ignore both the words (“well regulated militia”) and intent of the 2nd Amendment to invent a heretofore nonexistent individual right for any nut to own any firearm-like weapon.

    They respect precedent, except when they’re plotting to reverse Roe v Wade and enslave women with forced birth.

    Alito is issuing angry, Trumplike broadsides against the press and whining about CAncEL cULtUrE like a Fox News pundit. Barrett and Thomas are hobnobbing with Mitch McConnell. While the latter’s wife pals around with QAnon insurrectionists.

    None of this is normal or even traditionally conservative. The Roberts Court is a extremist, activist, radical right wing Apartheid Court with no democratic mandate or popular authority. That has been true for the better part of two decades. Like, y’all just now figuring this out? When the Zoomers say get “woke” this is what they mean.

    This Apartheid Court is flirting with illegitimacy.

  7. Scott F. says:

    We deserve better… and we ain’t gonna to get better. Because… see any of the several posts through this weekend.

  8. Michael Reynolds says:

    Was there someone who still doubted SCOTUS was partisan?

    The giveaway is that regardless of party the first stop for any SCOTUS nominee is the White House where are tutored in how to lie to the Senate. That’s been SOP since Roe.