Who Could Enforce a Mask Mandate on the Supreme Court?

Aron Solomon

In this active week of Supreme Court orders and oral arguments, one item that hit the news cycle is that Justice Sotomayor has chosen to participate in Supreme Court proceedings remotely, primarily because Justice Gorsuch refuses to wear a mask on the bench.

Justice Sotomayor has publicly acknowledged a disability - insulin-dependent diabetes - something celebrated by people with disabilities when Sotomayor was confirmed in 2009. While those against her confirmation used her health as a point they hit on again and again in confirmation hearings, it’s 13-years later and she is, by all accounts, doing reasonably well.

Which would be a great thing to continue to occur - her reasonably good health, that is. But she is working remotely because, while the Justices have returned to work in person and Chief Justice Roberts has asked all of the Justices to wear masks, only Justice Gorsuch has refused.

Ultimately, who or what could enforce a mask mandate on the Supreme Court if one of more Justices chose not to follow it?

The answer may lie in 28 U.S.C. § 672, the statute empowering a Supreme Court Marshal. If you know that this position actually existed of what all of the Marshal’s roles and responsibilities are, you get a gold star!

There’s a lot here.

The marshal shall:

  1. Attend the Court at its sessions;
  2. Serve and execute all process and orders issued by the Court or a member thereof;
  3. Take charge of all property of the United States used by the Court or its members;
  4. Disburse funds appropriated for work upon the Supreme Court building and grounds under the jurisdiction of the Architect of the Capitol upon certified vouchers submitted by the Architect;
  5. Disburse funds appropriated for the purchase of books, pamphlets, periodicals and other publications, and for their repair, binding, and rebinding, upon vouchers certified by the librarian of the Court;
  6. Pay the salaries of the Chief Justice, associate justices, and all officers and employees of the Court and disburse other funds appropriated for disbursement, under the direction of the Chief Justice;
  7. Pay the expenses of printing briefs and travel expenses of attorneys in behalf of persons whose motions to appear in forma pauperis in the Supreme Court have been approved and when counsel have been appointed by the Supreme Court, upon vouchers certified by the clerk of the Court;
  8. Oversee the Supreme Court Police.

So, this Marshall most of us have never heard of, pays the Justices’ salaries, disburses other funds and attends all of the court sessions. The Marshal also oversees the Supreme Court Police, so, in theory, would have the power to ask them to fine, detain, or potentially arrest a justice that was committing an illegal act.

As Nancianne Aydelotte, a New Jersey lawyer, explains:

“It’s an interesting hypothetical to imagine a mask mandate being enforced at the Supreme Court. Clearly, were the person violating it a visitor, such as an attorney present for an oral argument, the Court could order that person to be removed. If the person violating the mandate is a Supreme Court Justice, things would get very complicated fast.”

While few consider the inner workings of the Supreme Court to reflect any other part of American society, this current standoff is a poignant reminder of how politically polarized the Court has become and perhaps why people’s opinion of the Supreme Court is at a record low.

In common courtesy land, if one Supreme Court Justice doesn’t want to wear a mask but the other eight do, that Justice attends remotely. This is just baseline collegiality - something one would hope for in any work setting where working remotely is a viable option. This would, of course, be not one iota different if the Justice needing an accommodation was the farthest right conservative on the bench and the Justice refusing to wear a mask was the farthest left liberal.

But wearing or not wearing a mask has come to stand for so much more over the past 22 months and that in itself is a real shame. These issues begin with but go far beyond reasonable accommodation of a person - a valued co-worker with a disability - but speak to basic human decency. Somewhere along the arduous journey of these many months, we lost the thread and started to believe that these are two equally legitimate perspectives. They are not.

Being a Supreme Court Justice and refusing to wear a mask when you have not only immuno-compromised colleagues on the bench - but, come on, how many of these Justices are spring chickens - is a lack of basic human decency at the highest court in the land.

On Wednesday morning the Court decided to release this red herring of a statement, given that Justice Roberts asked the Justices to wear a mask:

“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."

Then two hours later, Chief Justice Roberts released this statement, which directly goes against the NPR report:

“I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.”

Whether or not Justice Roberts is now walking back his dictate, there is another practical issue here. If Justice Gorsuch has such a bias against masks, how was he allowed to hear a critically important mask mandate case? The reality is that we all have biases and none of us are close to perfect, but, any political orientation of the Justices aside, if you so ardently believe in a practical and political movement (not to wear masks) how can you decide a workplace mask mandate that affects millions of people?

The answer is that when you do, what you’re actually doing is damaging the public perception of the Court. This is something the Supreme Court simply can’t afford to do, given that the public sees the Court as being more political than they have ever been. What the Court actually needs to do is stay out of news stories such as this and just stick to their important business, ideally through working cooperatively and compassionately.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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