Since last Friday afternoon, Justice Neil Gorsuch has refused to wear a mask during in-person hearings at the Supreme Court, a decision that could impact the health of his fellow justices — especially given that the highly contagious Omicron variant of the virus continues to push COVID hospitalization rates into record high levels.
NBC News has reported that on Tuesday Gorsuch appeared without a mask on. All other justices in attendance were wearing masks, while two justices, Sonia Sotomayor and Stephen Breyer, attended via remote video communication.
All nine justices are vaccinated, including with boosters, for protection against coronavirus.
The Centers for Disease Control and Prevention (CDC) still recommends that everyone over the age of 2 years wear masks in indoor settings, as certain individuals with underlying health conditions may be at greater risk of contracting the virus even if they’re vaccinated.
Sotomayor has diabetes, and is therefore considered at greater risk of serious complications if she contracts COVID. It’s possible that her decision to work remotely this week came in response to Gorsuch’s refusal to wear a mask, as the two sit next to each other on the Court’s bench.
Breyer did not attend on Tuesday out of “an abundance of caution” after a rapid test result showed he was positive for COVID. A second PCR test showed he was negative, and physicians believe his first test was a false positive.
Breyer, who sits on the other side of Sotomayor at the Court — one seat away from Gorsuch — is also considered at high risk of experiencing severe complications from the virus, as he is 83 years old.
Gorsuch’s decision not to wear a mask comes as the Court is considering whether or not to block a rule established by the Occupational Safety and Health Administration (OSHA) that would require workers at companies that have more than 100 employees on their payrolls to either get vaccinated or get tested weekly for coronavirus. Earlier this month, the conservative bloc of justices, which comprise a majority of the Court’s bench, appeared ready to block those new rules during oral arguments.
Coronavirus cases, hospitalizations, and death rates are increasing in the wake of the Omicron variant’s continued spread across the country and the world. More than 140,000 Americans have been hospitalized each day, on average, over the course of the past week, with more than 1,700 Americans dying on each of those days.
In Washington, D.C., where the Court meets in person, the hospitalization rate has gone up by 162 percent over the past week, figures from The New York Times show.