As the Supreme Court justices in their matching robes shuffled into court Tuesday to tackle the final set of cases in the January sitting, their bland expressions masked the unusual intensity of the term that is playing out behind the scenes.
Not only are they furiously drafting opinions on explosive cases that have already been heard, but conservative groups — emboldened by the 6-3 conservative majority — also are pummeling them with requests to add even more divisive issues to the docket. And while the justices spent the first two weeks of the new year dealing with vaccine rules in the age of Covid, emergency requests — including on issues concerning abortion and former President Donald Trump’s legal woes — have poured in.
The justices don’t appear to be in great spirits.
Justice Sonia Sotomayor has been listening to arguments remotely from her chambers because she doesn’t feel comfortable sitting on the bench near colleagues who are not masked, including Justice Neil Gorsuch, according to a source familiar with the situation.
In addition, Sotomayor has been participating in the justices-only conference sessions remotely, a court spokeswoman confirmed. Those sessions — where only the nine are allowed, no staff or hangers-on — is where the justices debate and essentially determine the legal direction of the country.
Since January, amid the surge of the Omicron variant of the coronavirus, all of the justices have worn masks on the bench, except for Gorsuch. In the ornate courtroom, he sits next to Sotomayor.
Sotomayor, who suffers from diabetes as an underlying condition and would be at increased health risk if infected with Covid-19, participated in oral arguments on Tuesday remotely from her chambers, and plans to do so again on Wednesday, according to a court spokesperson.
At the beginning of the term, Sotomayor wore a mask on the bench at many cases. Another source familiar with the situation said that after Omicron surged, Sotomayor expressed her concerns to Chief Justice John Roberts. The source said she did not directly ask Gorsuch to wear a mask. She has participated remotely during arguments this month.
NPR first reported the reason for Sotomayor’s decision to participate from her chambers.
At oral arguments on Tuesday, all of the justices entered the courtroom wearing masks except for Gorsuch. Other conservative justices, including Samuel Alito and Clarence Thomas, occasionally took their masks off. The remaining two liberal justices on the bench, Stephen Breyer and Elena Kagan, kept their masks on even while asking questions.
Gorsuch smiled as he entered the courtroom to take his seat on Tuesday, engaging in a brief conversation with Justice Amy Coney Barrett, who was masked. Sotomayor’s chair remained empty, and she participated over the phone.
Under Supreme Court rules, media covering the court proceedings and lawyers arguing before the court have to wear masks, but there are no specific rules regarding masks for justices. All of the justices have been fully vaccinated and received booster shots. They are also frequently tested.
CNN has asked the court to comment on Gorsuch not wearing a mask and Sotomayor’s decision to participate remotely.
Another dynamic in play is whether Breyer — as is widely believed — will announce his retirement this term.
If he were to retire, the vacancy and eventually new confirmation hearings would once again place the court in the spotlight during a politically fraught time, a midterm election year, calling even more attention to the direction of the court and calls for court revisions. More than one justice has remarked in the past that when one of them leaves, it changes the entire court.
On the docket
Already, the court has heard one of the most consequential cases in decades — a request from Mississippi to overturn Roe v. Wade and upend a woman’s right to abortion, established decades ago.
By now, the majority opinion has been assigned in the case, which was argued on December 1. At oral arguments, Roberts suggested a middle-ground petition that would allow Mississippi’s law that bans abortion at 15 weeks to go into effect but leave Roe on the books.
Although it didn’t seem to attract a lot of attention from the right flank on argument day, it could prompt further discussion among the justices as the draft-writing process plays out. Ten days after that case was argued, in a different case the court allowed a Texas law that bans the procedure at six weeks to remain in effect. Although the court did clear a narrow path for abortion providers to challenge the law, supporters of abortion rights were left deeply dismayed for the future of those rights. While the justices at speaking events often talk about how much they value civility, the dissenters in the Texas case did not mince their words.
“The court thus betrays not only the citizens of Texas, but also our constitutional system of government,” Sotomayor wrote for her liberal colleagues. Those tensions emerged again at oral arguments on January 7, when Kagan pushed back at a lawyer challenging President Joe Biden’s vaccine rules aimed at large employers. She was unusually animated: “This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here. I’m just sort of stating facts.”
The court would end up blocking the requirement with all three liberals in dissent.
Behind closed doors
While mulling over these cases and a full docket, the justices are also regularly meeting behind closed doors to consider whether to add cases to the docket — the meetings where Sotomayor is now calling in remotely.
For two conferences already they have been discussing a pair of major affirmative action cases in appeals brought by a conservative group challenging the admissions policies at Harvard and the University of North Carolina at Chapel Hill which consider race.
Again, the justices are being asked to overturn precedent — on an issue that deeply divides the public. Although they haven’t acted on that request, last week they agreed to hear a case brought by a high school football coach who was barred by the school district from leading prayers at the 50-yard line after football games. They are also being asked to take up the case of a graphic designer who seeks to create websites to celebrate weddings but does not want to work with same-sex couples out of religious objections to same-sex marriage. Would be interesting to note whether their 2018 wedding cake ruling should settle this issue
In addition, Oklahoma is asking the court to reverse a recent decision holding that a large swath of the state — including parts of Tulsa — is Native American land for purposes of federal criminal law. Critically, Oklahoma likely believes it has a chance because since the 5-4 decision came down, Barrett has taken the seat of the late liberal icon Ruth Bader Ginsburg. If the justices agree to take up the case, it will raise questions of whether precedent should be so swiftly reconsidered due to a change in the court’s membership.
Emergency petitions and Trump requests
The justices aren’t just juggling their docket and pending cert petitions. They are also considering emergency applications asking them to act without full briefing on matters on an expedited basis. Texas abortion providers, for example, still reeling from the court’s decision to allow the state’s law to remain in effect, are asking the justices to demand that a conservative federal appeals court send what is left of the case back to a district judge who ruled in their favor during an earlier phase of the case. The justices have said nothing.
Arizona wants the court to allow a law that prohibits doctors from providing abortions based on genetic abnormalities like Down syndrome to go into effect before an appeals court has fully dealt with the case. The high court has said nothing.
Lawyers for Trump are asking the justices to block release to a congressional committee of White House documents related to the January 6, 2021, US Capitol attack. Trump argues the materials are protected under executive privilege even though the current President disagrees.
The justices often say that while they disagree on paper, they pride themselves on civility. At a videoconference event last year with Sotomayor, Gorsuch noted that the court is composed of people from “all across the country” with “radically different life experiences” who share a love for the country.
More than that, Gorsuch added, his colleagues “really love one another, respect one another and listen to one another.”
