Nina Totenberg slammed Kelly McBride, the ombudsman for National Public Radio (NPR), for concluding that she should rewrite her story accusing Neil Gorsuch of refusing to wear a mask to protect his colleague, Sonia Sotomayor. McBride did not suggest a correction but merely a “clarification.” Totenberg responded to The Daily Beast and declared that McBride “can write any goddamn thing she wants, whether or not I think it’s true.” Now, days after rare public denials by all three referenced justices, many in the media who denounced Gorsuch have followed suit. They also refuse to clarify or address their own attacks on the justice in light of the denials from the Court. Notably, Gorsuch was the subject of another false story connected to the same oral argument. Many also did not correct that reporting. (For full disclosure, I testified before the Senate in support of Gorsuch’s confirmation).

The philosopher Alexis de Tocqueville once said that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” That is the certainly the case with the Supreme Court this month. After striking down the Biden vaccine mandate for workplaces, the Court found itself embroiled in the raging question over masks in the workplace after the NPR story.

Gorsuch did appear in the last argument without a mask. Ironically, if he had simply worn a cloth mask, there would have been no outcry even though the masks not appear to block these variants and even CNN’s experts are calling the cloth masks “little more than facial decorations.” It is not clear that Sotomayor even knew whether anyone or everyone would wear masks at the argument. She had previously stated an intention to participate remotely. Given the lack of protection from most masks (including reused or contaminated N95 masks), Sotomayor likely felt the risk was not worth taking.

Nevertheless, Totenberg pounced at the chance to (again) pummel Gorsuch:

“Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up. They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.” 

It did not matter that Totenberg had previously attacked Gorsuch. The media showed the same hair-triggered tendency with previously debunked stories.

MSNBC’s Nicole Wallace declared Gorsuch guilty of “anti-mask insanity.” Her colleague Joy Reid accused Gorsuch of virtually standing Sotomayor up in front of a Covid firing squad for his personal enjoyment. Reid declared that Gorsuch was “risking the life of your colleague” and was a “rotten co-worker,” “dangerous to be near in a pandemic,” and “tonight’s absolute worst.”  Reid even declared on the air that  Gorsuch “loves COVID — which makes him the perfect Republican”

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.

Then came the denial of all three justices.

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. Indeed, previously the justices did not wear masks during arguments. Moreover, Gorsuch is routinely shown wearing a mask around the courthouse.

The joint statement of the two justices insists that Totenberg’s account is entirely false:

“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.”


Notably, these are three jurists who interpret the Constitution, statutes, treaties, and agreements for a living. All three read the Totenberg report and felt compelled to issue rare public statements to refute the story.

Their judicial interpretation was shared by everyone who heard the report (though Fox News’ Shannon Bream quickly and correctly challenged the report with her own sources denying the story). They understood NPR as saying that Gorsuch refused to wear a mask after Roberts asked all of his colleagues to do so to protect Sotomayor. That interpretation was readily apparent by the ragefest on cable news and the Internet as media figures lined up to denounce Gorsuch as a type of viral homicidal maniac.

In response to the justices, Totenberg insisted that she never said that Gorsuch was directly asked by Roberts to wear a mask and did not say that he rebuffed a request from Sotomayor. However, Totenberg pushed the false narrative of the story as it went viral. Totenberg tweeted the following description of her story: “Gorsuch refuses to mask up to protect Sotomayor.”

Strangely, Totenberg seemed to argue that her much promoted piece was really not mcuh news at all. Roberts may not have asked anyone to wear masks and Sotomayor’s remote participation may have had nothing to do with Gorsuch. Indeed, even if Gorsuch wore the common cloth mask, it would not, according to various studies, afford her real protection against the variant. The problem is that is not how virtually everyone understood her story as evidenced by the coverage.

NPR stood by the story even though its own ombudsman suggested that it should be clarified. Totenberg immediately ran with the NPR support and backhanded the ombudsman:


NPR reporter David Gura went even further and suggested that the justices might simply be lying and we should not take their account over those that of Nina Totenberg. 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.”

Totenberg went on to say that, as a journalist, she did not even read the views of NPR’s own ombudsman review” “I haven’t even looked at it, and I don’t care to look at it because I report to the news division, she does not report to the news division.”

The NPR story is the latest example of rage politics and how the underlying truth is immaterial to the narrative.

I wrote earlier that it really does not matter that the story was false or misleading. As expected, the media simply moved on without admitting errors. It is a pattern that we have seen repeatedly.  We have discussed the false reporting in controversies ranging from the Lafayette Park protests to the Nicholas Sandmann controversy to the Russian collusion scandal to cases like the Rittenhouse trial.

We are left with a zen-like “tree-falling-in-the-forest” paradox: it is not fake news if the news will not admit to faking it. That fact is that people like an ombudsman can “write any goddamn thing” they want but, if it is not reported, it matters little.  Gorsuch “loves Covid” and wants to kill a liberal colleague . . . whether he does or not.

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