Maskgate at the Supreme Court

On today’s podcast, David and Sarah break down “Maskgate,” the claim that Justice Neil Gorsuch ...

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On today’s podcast, David and Sarah break down “Maskgate,” the claim that Justice Neil Gorsuch refused to show basic courtesy to Justice Sonia Sotomayor by refusing to wear a mask and find the claims wanting. They ask, “When a report seems to fall apart, what should a reporter do?” They also talk about how Sarah is setting Supreme Court precedents, wonder if a Satanist flag will soon fly over Boston, and discuss for just a few seconds Ted Cruz’s very, very boring case at the Supreme Court. They close, however, with a dash of English cultural history that you won’t want to miss.

Show Notes:

–Nina Totenberg’s mask story at NPR

–Statement from Justices Sotomayor and Gorsuch

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  1. Scott Nowicki

    David and Sarah,

    I have an issue I would like you to discuss if possible. This may be geared toward the more general Dispatch Podcast as it is not explicitly legal in nature, but it may have some implications with regard to federal and state disability statutes.

    The general topic is mask guidance for young children, specifically children, ages 2-4. The CDC guidance requires these children to mask. The WHO and other western nations do not require masks until children reach age 5 or 6. The most recent CDC data indicates that COVID-19 has not negatively impacted this age cohort with regard to mortality. Deaths due to “diseases of the respiratory system” have dropped steadily during the pandemic (158 in 2018, 138 in 2019, 119 in 2020, and 89 in 2021). Note that 2021 is provisional at this point (source: https://wonder.cdc.gov/mcd-icd10-provisional.html).

    The specific topic is quarantine guidance for non-verbal young children, ages 2-4, with autism who receive ABA therapy in a group setting. Research has shown that early intervention with ABA therapy, specifically in a group setting, is the most effective treatment for autism (source: https://asatonline.org/for-parents/learn-more-about-specific-treatments/). Any policy that interrupts this treatment must be supported by clear and convincing evidence. The CDC provides none. The CDC allows for no judgement from clinicians (BCBAs, ABA clinical directors, etc.) to balance the risks of transmission and infection (again, which are not provided by the CDC) with the known consequences of not receiving the therapy essential to achieving the best outcomes for these children.

    I recently reached out to CDC Info and submitted an escalation request addressing this issue. The response I received contained a combined level of ignorance and arrogance that I found to be breathtaking. I included the response in full below.

    “Thank you for your inquiry to CDC-INFO.
    Your request for information was forwarded to the CDC National Center for Birth Defects and Developmental Disabilities. We hope you find their reply helpful.
    Thank you for your question. CDC’s guidance for isolation and quarantine is the same for all people. There are no exceptions based on disability or other health conditions. We know there are people who may be uncomfortable in masks, but there are many types of masks you can use to protect yourself and others from getting and spreading COVID-19. There may be rare instances where wearing a mask is not possible. Please consult with your doctor for help. You can also visit this website for some tips for people with autism and mask wearing. Helping Individuals with Autism Wear Face Masks

    Sincerely,
    Centers for Disease Control and Prevention”

    Uncomfortable? Yes, the only issue that my three year old, non-verbal, autistic son has with wearing a mask is that it is uncomfortable. If only I could ask him and hear his response.

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  2. Paul

    David and Sarah said that topics on the next podcast would include seditious conspiracy. I can't figure out how to send an email to ask my question so I"m asking it here. (I hope that's okay.) There's a piece in the New Yorker by Jeanine Suk Gerson that says that the recently indicted defendants in the storming-the-capitol case can defend on the basis that they held the subjective belief that the transfer of power they were interfering with was unlawful. But I don’t see any knowledge requirement in the statute. It just makes it a crime to conspire to, inter alia, “prevent, hinder or delay the execution of any law of the United States ….” I don’t see anything there to suggest that defendants win if they subjectively thought they were defending the constitution, as Professsor Gerson claims. (I think that’s what she’s claiming.) What’s the mental states required to prove the crime here?

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      Sarah Isgur vertical-nib Author

      Also we screwed up and didn’t do that today bc of the harvard cert grant. So now we can address this too!!

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      1. Paul

        Thanks!

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    Nathan

    This is a dumb comment, but for all the Latin phrases that get used regularly on the podcast, I think we should pluralize "forum" with the Latin ending, making it "fora", rather than the English "forums". That's all the criticism I have. Great episode!

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  4. Andrew Smith

    The Mansky case had some really bad arguing from the government lawyer. There were a series of hypotheticals asked and those exposed the liberal bias of the lawyer. Anything possibly "Conservative" could obviously be banned, including a shirt with the text of the 2nd Amendment, while most things "Liberal" would have been allowable, according to the lawyer.

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  5. Nathan G

    Team! Coming here just to say THANK YOU for bringing back the OG intro. I can't even begin to tell you how big my smile was when that started to play. It's quintessentially David and Sarah. Also loved the mask-gate breakdown. So helpful to get the context around all the dynamics. Another fantastic podcast!

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    John Russell

    At time stamp 1:05:36 Sarah makes the first of two uses of what sounds like the past tense of the word "dig" but pronounces it "digged" rather than "dug." Could "digged" be a back-formation from the acronym DIG for Dismissed as Improvidently Granted? Some of us non-lawyers need help deciphering the insider jargon.

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      Sarah Isgur vertical-nib Author

      Indeed! DIGed. Dismissed before they reach an opinion usually bc there’s something wrong w the record or the procedural stuff that they didn’t know about. Should have explained!

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  7. Frederick F

    The answer on the times of Victorian English parties was wonderful. I wonder if the emailer is a Dispatch member? Would love to make his acquaintance. Super fun hearing about another English postgrad who listens to Advisory Opinions!

    And I forgot to mention, but I LOVED Sarah's history of the gavel a few episode ago!

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    Jon McKinney

    I don’t think I want to hear “Ted Cruz” and “condoms” in the same sentence again.

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      Sarah Isgur vertical-nib Author

      Fair criticism.

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  9. H.Allen.Irish

    I was somewhat disappointed in the segment on the Totenberg story because there was a fundamental glossing over the badness of what Totenberg did and that NPR acceded to. In fact, following the statements issued by the three members of the Court, Totenberg subsequently published a totally defiant "clarification" that appears to deflect any criticism and doubles down on her initial "reporting." She makes her agenda clear by going postal on Gorsuch and the "conservatives" she so clearly despises. Basically, she "clarifies" her view that Gorsuch is a total d*ck and is hated by his colleagues and that moreover that she doesn't answer to the "public editor," who can stick it where the sun don't shine. https://www.npr.org/2022/01/18/1073428376/supreme-court-justices-arent-scorpions-but-not-happy-campers-either More on her "GFY" attitude is reported in the Daily Beast. https://www.thedailybeast.com/npr-founding-mother-nina-totenberg-unloads-on-public-editor-kelly-mcbride-over-scotus-story-clarification

    Clearly Totenberg sees herself as untouchable, which the podcast sort of suggested is the case. But to essentially call out Roberts, Gorsuch, and Sotomayor as dissemblers is beyond the pale and I can't imagine that even her erstwhile pals/sources will have anything to do with her after her dissing a third of the court and doubling down on it in her "clarification." The podcast sort of suggests that this bit of gossip came from a justice, which I doubt - I think it's more likely that this is a partisan fellow traveler who works in the building and Totenberg has cultivated who passed on a juicy bit of office gossip that Totenberg then happily ran with (if Breyer had been the bad guy rather than Gorsuch, I suspect NPR would have probably spiked it).

    This is clearly a case of this item confirming her and NPR's priors on Gorsuch so they went with it and won't take it down even after the Chief literally called it false (note that it's even a bit shocking that the Chief Justice felt it necessary to respond to NPR's bit of tittle tattle -- and for Totenberg to essentially assert that he was parsing his denial to protect Gorsuch is outrageous). I've never cared for Totenberg, who is a complete partisan, and the fact that she is able to give the finger to the public editor and get away with it shows that NPR is happy just to roll with this piece as a partisan hit on what they view as bad/illegitimate members of the court.

    Note: I know Gorsuch can be testy. I personally saw him administer an ass-chewing to, of all people, Paul Clement, in oral argument. But if he's such a jerk, why would Sotomayor go out of her way to sign on to a statement exonerating him? Makes no sense.


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    Pat Riot

    The next time you hear a Republican argue in favor of the filibuster and the 60 vote threshold, remember that the single most divisive issue in all of American politics will soon be upended by a Supreme Court majority confirmed by a simple majority of senators who represent about 45% of Americans.

    Overturning RvW is opposed by 69% of Americans, probably because many don't want illegal abortion, and probably many don't want the issue to be on every state and federal ballot for now on, and probably many who vote Republican but felt confident the issue would never affect *them* because they live in a blue state and/or they are more affluent and can travel.

    Now the issue will be shoved in the face of every election for now on, and there's even an argument to be made that "technical solutions" (viz. "underground railroads" and the proliferation of free abortion pills) will actually *increase* abortions in the USA when it becomes, net-net, even easier to get an abortion than ever before e.g. as easy as it is to buy a dime bag of grass in a state where it's technically illegal.

    Think about *that* forthcoming polarizing poop storm when you hear a Republican argue for the 60 vote threshold in the Senate...

    https://www.documentcloud.org/documents/21183488-abortion

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