Supreme Court justices Neil Gorsuch and Sonia Sotomayor issued a rare joint public statement Wednesday to disclaim the bombshell NPR report by Legal Affairs correspondent Nina Totenberg on the unpopularity of Gorsuch among his colleagues and his alleged refusal to wear a mask despite a threat to the health of Sotomayor. The justices stated that Totenberg’s account on the mask controversy was false. It is unclear what sources Totenberg relied upon for the report, which went viral on liberal media sites. (For full disclosure, I testified before the Senate in support of Gorsuch’s confirmation).
Totenberg has been previously accused of bias by Republicans and conservatives for her takes on the Supreme Court. In one incident, NPR itself expressed regret that Totenberg did not reveal a close personal relationship with the late Justice Ruth Bader Ginsburg despite years of coverage. We previously discussed another controversial story where she attacked Gorsuch while extolling the brilliance of Justice Elena Kagan.
In this latest segment, Totenberg again heralded Kagan as “one of the court’s best questioners” and compared her to Gorsuch who she presented as unpopular, unliked, and unpredictable. Despite her long journalistic career, the segment reads like an unvarnished hit piece portraying Gorsuch (who has previously received glowing reviews from appellate colleagues on both ends of the political spectrum) of being “a prickly justice, not exactly beloved even by his conservative soulmates on the court.”
One of the most reported elements is the claim by Totenberg that Sotomayor (who suffers from diabetes and is considered high risk for Covid) was cited by the Chief Justice as the basis for everyone wearing masks to protect her health. Totenberg suggests that Gorsuch refused. She claimed that, since Gorsuch is seated next to Sotomayor, “his continued refusal … meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.”
Chief Justice John Roberts also issued a statement that it was false, as claimed, that he asked any of colleagues to wear masks on the bench.
“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.”
The NPR story struck many of us as diametrically at odds with everything we have heard about Gorsuch on the Court. However, it was another “fact clearly too good to check.” Sites exploded on the left about this conservative justice literally threatening the life of a liberal colleague. Rolling Stone ran with the story “Neil Gorsuch Stands Up for His Right to Endanger Sonia Sotomayor’s Health,” and added “the liberal Supreme Court justice is diabetic and didn’t want to sit next to justices who weren’t wearing masks. Her conservative colleague didn’t care.”
Former senator Claire McCaskill tweeted:
So glad I voted no on this jerk. What kind of guy does this? I could tell in my meeting with him that he thought he was better than everyone else, more important, smarter. Ugh. #Gorsuch
The Daily Kos declared
“it is hard to imagine a bigger shit. But we should not be surprised…Most Americans will find his selfishness incredible, but it is typical of his kind. One trait common to every conservative is a sociopathic lack of empathy.”
Elie Mystal, who has written for Above the Law and the Nation, tweeted
Confirmation of what we all already knew. Whatever you think about masks, Gorsuch, who sits next to Sotomayor at work, just decided to be a dick to a colleague.
At Above the Law, even the joint statement made little difference. Indeed, Kathryn Rubino (who is the subject of another dubious column today) discarded the statement of even Sotomayor herself in a column titled “Neil Gorsuch’s Call For Civility Was Always Just For Show.” Rubino still maintains that the false story still proves her point: “This information probably does not surprise Supreme Court watchers — like even a little bit — but, Neil Gorsuch is a real jerk of a coworker.”
Previously, after Gorsuch was misquoted by reporters (who largely apologized or corrected their articles), ATL editor Joe Patrice dismissed the official transcript (and the recording) to accuse Gorsuch of tampering with the record in a column titled “Neil Gorsuch Cited Fake Flu Stats And Then Scrubbed The Transcript Like A Coward.”
Ruth Marcus who also features prominently in the earlier column controversy discussed today ran with the mask claim. That column stated that a conservative law clerk on the Eleventh Circuit had sent out a racist text — a story again picked up by a wide array of media sites. The Second Circuit just released a report refuting the underlying allegation in ATL, the Washington Post, and other outlets.
It really does not matter if it is false or not. The narrative remains. The story is another manifestation of our age of rage. It is not enough that you disagree with Gorsuch. You have to portray him as a sadistic, borderline homicidal fanatic. In the end, the media just moves on with the next collective primal scream session masked as journalism.
NPR has not explained why Totenberg did not confirm with either justice. It did issue a statement that “stands by” Totenberg that is enough to make a Philadelphia lawyer blush:
“Totenberg never reported that Justice Sotomayor asked Justice Gorsuch to wear a mask, nor did she report that anyone admonished him. She did report that Chief Justice Roberts; ‘in some form asked the other justices to mask up’ – and Gorsuch was the only one who did not.”
Roberts has denied making such a request but “in some form” could mean anything. Under NPR logic, he could have asked through telepathic means or used allegorical accounts to encourage colleagues to mask up. Moreover, the tweet sent out the NPR left little doubt of the import of the reporting that Gorsuch had refused such requests despite Sotomayor’s health concerns. Totenberg tweeted the following description of her story: “Gorsuch refuses to mask up to protect Sotomayor.”
Such sensational accounts are not supposed to be journalism “in some form.” Just journalism. The three mentioned justices (Roberts, Sotomayor, and Gorsuch) are denying the underlying claims. But NPR “stands with” the story.
NPR reporter David Gura went even further and (like ATL’s Patrice) suggested that the justices were simply lying. Gura tweeted “I [sic] surprised at how many Supreme Court correspondents I admire are passing along a statement from two justices that is at best false without any context whatsoever.”
The NPR story not only continues the unrelenting attacks on Gorsuch and his conservative colleagues in the media, but also continues to portray the Court as bitterly divided. The Court itself has repeatedly refuted such claims with a series of unanimous and near unanimous decisions. Individual justices like Stephen Breyer chaffed at the claim that this is a “conservative” court. Yet, if you are going to pack the Court, you need to convince the public that it is hopelessly divided and dysfunctional. For that reason, even the popularity of the Chief Justice in a recent poll was viewed as “dire” for democracy in the media.
The fact is that justices on either end of the ideological spectrum have maintained close friendship. The relationship between Justices Ruth Bader Ginsburg and Antonin Scalia was such an example.
We have been discussing the rise of advocacy journalism and the rejection of objectivity in journalism schools. This movement includes academics rejecting the very concept of objectivity in journalism in favor of open advocacy. In an interview with The Stanford Daily, Stanford journalism professor, Ted Glasser, insisted that journalism needed to “free itself from this notion of objectivity to develop a sense of social justice.” He rejected the notion that the journalism is based on objectivity and said that he views “journalists as activists because journalism at its best — and indeed history at its best — is all about morality.”
The controversy at NPR occurs after the publicly funded company changed its policy to allow its reporters to take active parts in protests for social justice — erasing a long-standing bright-line rule in journalism. The impact of such advocacy journalism is evident in every poll where the faith in the media has plummeted. Indeed, the “Let’s Go Brandon” movement is as much a criticism of the media as it is President Biden. The United States ranked dead last in media trust among 49 countries with just 29% saying that they trusted the media.
We will not be able to restore the trust in the media until these companies abandon reporting “in some form” and return to simple journalism.