A recent NPR report drew attention to the fact that Supreme Court Justice Gorsuch does not wear a mask on the bench. Because Justice Gorsuch refuses, Justice Sotomayor, who has diabetes, has been working remotely. In response to the NPR story, Justices Gorsuch and Sotomayor issued a rare joint statement, denying that Sotomayor had asked Gorsuch to wear a mask. Chief Justice Roberts issued a statement too, denying that he had asked any of the justices to mask – both claims made in the original NPR piece. The news reports frame this masking drama as a window into politics on the Supreme Court, but the Supreme Court is also a workplace.  Roberts, Gorsuch, Sotomayer – they are all struggling with the ethical dilemmas the pandemic has brought to the work environment. 

The media reporting – both in the original NPR report and the responses to it -- revolves around the question of who asked whom to do what. And this immediately caught our eye, because the act of telling or asking another what to do has become the locus of charged emotion and elaborate social strategies in our interviews. Since July 2020, we’ve interviewed over 200 Americans about how they have navigated COVID-19 protocols at work. We have been curious about what the pandemic can reveal about how American workplaces function as sites of “private government.”

In exploring this, we are following Elizabeth Anderson’s (2017) insight that workplaces are commonplace sites in which Americans learn how to govern and be governed by others in anti-democratic ways. For Anderson, workplaces are often instances of autocratic governance, or as she puts it, of private government, because many people have to obey rules that they have no say in creating and maintaining; they cannot alter these rules through their own efforts, or their representatives’ efforts. The pandemic has been a moment in which workers have been forced to pay explicit attention to the ways in which they are governed without having much recourse to shaping what these rules might be, because they are in workplaces where decisions about safety are being made quickly and without workers’ say. The consequences of living with private government, thus, is very much on people’s minds.

In many of our interviews, these issues were expressed as concerns around the performative act of ordering another person to do something. Americans in many instances seem to find it highly inappropriate to tell another what to do unless the relationship is defined by contract or kinship bonds. Because this is so loaded, asking another person to do something, telling’s metaphorical first cousin, also becomes a socially charged act, requiring anticipatory conversations with friends and occasionally practice rehearsals, before the act of asking actually takes place. Thus, we were fascinated to see the U.S. Supreme Court justices as co-workers struggling with questions all too familiar from our interviews. We view asking and telling others what to do as part of a broader American dilemma over rights and respect in the workplace.

Because telling is such a highly charged speech utterance, many workers feel not only that their employers have neglected to protect their health, but that they also cannot make their own requests of their coworkers and customers. This leaves workers with the sense that they are trapped into silence (which may help explain why more than 20 million people quit their jobs in the second half of 2021). The dialogue surrounding the Supreme Court drama thus echoes what we are learning is behind the Great Resignation.

The question of who asked or told whom to do what is a question of locating responsibility and blame. If Sotomayor asked that Gorsuch wear a mask and he refused, the conflict would seem to be between the two of them.  It would be a personal request without institutional authority. On the other hand, if Roberts demanded that all justices wear a mask and Gorsuch refused, the conflict would be between Gorsuch and his titular manager and/or workplace. 

Since Gorsuch is vaccinated and boosted, it would be hard to imagine that his reason for not wearing the mask reflects disbelief that the virus exists. It is possible that he does not believe masks prevent spread. But regardless, it is possible to choose to wear a mask, not because you think it will be effective at stopping spread, but for no other reason than because it eases other people’s concerns.  We came across an instance of this logic only once in our research, on a Reddit forum for Target employees we found a telling variation on the social dilemma between the right to be in charge of one’s own risks and protecting the common good.  The Target employee talks about an exchange with a customer:

Near the end of our conversation, he asks me: ‘So what's your opinion on the mask thing? You think it'll end anytime soon?’

I say: ‘I'm for the masks as it helps people to decrease the spread of the virus. The masks though, I think they're here for another year at the minimum.’

He says: ‘That's fair, that's fair. I personally think the masks are incredibly stupid. Even though I'm not at risk from Covid, I wear it anyway so others who are at risk won't get infected.’

In my opinion, that's an incredibly mature and respectable opinion to have. You may not agree with the mask wearing, but we do it for the health of those who are the most vulnerable. (Reddit: “Opinions on Masks from a Guest”)

On the surface, this was a common encounter in the pandemic – two people in a workplace understood the risk of contagion differently, and are evaluating each other’s perspective. What was unusual in the U.S. context was the customer’s take. Many think of mask wearing as an inconvenience, but the customer was choosing for the common good, despite the fact that he didn’t actually believe that what he was being asked to do was necessary. Instead of arguing about whether someone has the right to tell another what to do, both employee and customer decide to opt to think about the larger social contract – a commitment to the common good –regardless of reservations around mask wearing.

With this as a possibility, it is not so surprising that several journalists and news media outlets have pointed to Gorsuch’s refusal to mask as selfishness, saying not masking makes him a “rotten co-worker,” a “maskless superspreader,” and an “impossibly callous guy with poisonous levels of self-regard” for “prioritizing his right to be a tool over Sonia Sotomayor’s life.” All heated language, but the reporters are pointing out that sometimes as community members, we should demonstrate how much we value others by responding to their concerns, whether or not we think that they are in fact in danger.

But few have commented on Roberts’ silence. Roberts’ statement said, “I did not request Justice Gorsuch or any other justice to wear a mask on the bench.”  Here he is carefully erring on the side of asking instead of telling, but when Roberts says he didn’t make a request, the distinction between request and order is a different one than when Sotomayer says so, because of their different structural positions. Perhaps he does not think workplaces can make such demands couched as requests of their employees. Or, even if workplaces can make such demands, perhaps he feels that they should not, viewing Gorsuch’s unmaskedness as an interpersonal issue between him and whoever might want him to do otherwise. 

In the workplace, though, a conflict between co-workers is never just interpersonal, because the coworkers always have organizational roles. The relationship between individual workers – whether they inhabit the same or different structural positions – will shape how they carry out their work, from workflow processes (like calling in favors, and “getting things done” all around), to patterns of movement through the physical space, to psychological wellbeing. So even if Roberts considers Gorsuch and Sotomayor’s difference on masking to be a matter of personal opinions to which everyone is entitled, their disagreement still carries implications for the Supreme Court’s work. If Sotomayor’s benchmate will not wear a mask, she will have to hear arguments and attend weekly conferences virtually. This different configuration of workers affects interactional dynamics, both formal and informal – which in turn accrete and produce ripple effects for the Justices’ individual and collective work and relationships, both now and in the future.

Thus when Roberts says nothing, he is refusing a role as mediator, part of the job role of being a boss, and closing off one potential avenue for conflict resolution. To be sure, Roberts is not a typical boss – he can’t fire anyone, after all. But he is setting the tone for how as a community the Supreme Court decides it should function. If he is silent, this too matters.

What is ultimately at stake in viewing the Supreme Court as a workplace is recognizing the ways that workplaces implicitly ask their workers to relinquish some of their autonomy in exchange for the privilege of working – even Supreme Court Justices. As a workplace, the Supreme Court has not chosen to protect the workers whose health is particularly vulnerable – or seen the workplace as a community in which everyone has moral obligations to make their co-workers feel safe. Sotomayor has had diabetes since childhood and Breyer is 82 years old. Yet these individuals must fend for themselves, either accepting risk or being exiled to work from a private office. In the Supreme Court workplace of 2022, neither the employer nor the individual workers dare ask each other to take public health precautions.

Author Bios

Anna Eisenstein is a postdoctoral researcher on the Pandemic Families Project at Indiana University. Her research considers the sociocultural and communicative dimensions of care, focusing on the ways people imagine their connections to others. 

Ilana Gershon is the Ruth N. Halls Professor of Anthropology at Indiana University.  She is currently writing a book on what the pandemic has revealed about how US workplaces function as sites of private government.

References

Anderson, Elizabeth. 2017. Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Princeton: Princeton University Press.