Supreme Court Justices Sotomayor, Gorsuch dispute having COVID mask flap

Supreme Court Justice Sonia Sotomayor did not ask her colleague and seatmate on the bench, Justice Neil Gorsuch, to wear a mask during the omicron surge, according to a rare joint statement issued Wednesday.

The justices, addressing swirling media reports of discord, insist they remain "warm colleagues and friends" despite recent headlines suggesting Gorsuch had defied a request to mask up, forcing Sotomayor, who, because of her diabetes and her age -- 67 -- is at heightened risk of COVID, to retreat to her chambers.

"Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends," they said in a rare joint statement.

Since early January, Sotomayor has not joined her colleagues for any in person proceedings or private meetings due to health concerns. At the same time, her peers began wearing masks while together -- with one notable exception: Gorsuch.

NPR's Nina Totenberg reported Tuesday, citing an unnamed source, that Chief Justice John Roberts had encouraged his colleagues "in some form" to mask up during omicron. She indicated that Gorsuch defied that request.

Fox News' Shannon Bream reports, citing a separate unnamed source, that's not true and that no request went out from Roberts and that Sotomayor never asked Gorsuch herself.

Roberts later out his own statement, saying, "I did not request Justice Gorsuch or any other Justice to wear a mask on the bench."

He indicated he will have no further comment.

All the justices are boosted and tested daily before meeting together, per the court.

From October through December, all nine justices convened on the bench together -- and only Sotomayor wore a mask at that time. She sat next to a maskless Gorsuch and Justice Stephen Breyer, among others.

In January, when they reconvened, most justices started wearing masks -- with sole exception being Gorsuch. Sotomayor started dialing in from chambers.

The implication has been the appearance that Sotomayor is not comfortable sitting next to unmasked Gorsuch -- with whom she's been friendly and appeared with jointly in virtual events.

Her chambers has not specified the reason for her remote participation.

Everyone else in the courtroom who's not a justice must be masked and must be tested, per court rules.