Tom Madden,  Founder & CEO, TransMedia Group

Wanting to write critically about Supreme Court jurists taking political nose dives into proceedings, I was tempted to be facetiously irreverent.  Then I thought that would not be too cool on Martin Luther King Jr. Day.   

This venerable day might not be the right occasion to criticize the Supreme Court after all the good the court has done for our country . . . stepping up in the 1950s to back Dr. King’s herculean efforts to put an end to segregation.

How in 1954, its groundbreaking ruling in Brown v. Board ended racial segregation in public schools.  And two years later, the Court ruling Brown also applied to busing, thereby leading to total integration of buses in Montgomery, Alabama. 

The 13-month boycott of Montgomery busing system that Dr. King led served as a model for his non-violent tactics, persuasive rhetoric, and community coordination, which catapulted King to the front lines of the civil rights movement.  

The Supreme Court had stood on the side of Dr. King’s civil rights advocacy.  And knowing this, you can’t very well make fun of that shinning pinnacle of law and juris prudence standing tall in our Nation’s capital, with such a history of notable accomplishments.  

And especially you don’t knock the Supreme Court when you have clients who look up to that judicial branch of government, including accomplished lawyers like Peter Ticktin, author of “What Makes Trump Tick.”

One day while Ticktin was visiting the former President, who has had perhaps the greatest impact on the court, Donald Trump spontaneously inscribed this accolade in Ticktin’s book, “Wonderful” handwritten in large letters above his famous signature. The book is about the time they were both teenage cadets at the New York Military Academy.  Later, President Trump would appoint three associate justices to the Supreme Court, skewing it decidedly conservative.

Still, as I’m sure Dr. King would observe, COVID-19 has had a disproportionate impact on Black Americans, so he probably would want the Supreme Court to do all in its power to end the pandemic, just as it ended segregation. 

Many lawyers rightly or leftly regard the Supreme Court as the ultimate high bar in their justice world, so it wouldn’t be very politic of me to ask rhetorically why associate justices sometimes swing from jurists to jesters, but truth be told SCOTUS is a stellar group or nine serious legal beagles who decide if our laws are in keeping with that sacred blueprint given to us by our founding fathers, our Constitution.  

Yet who can’t help noticing the partisan Covid divide protruding and sometimes producing fallacies that occasionally pop up into this august judicial body’s deliberations from left and right.  

Take for example the other day when Justice Neil Gorsuch came in and sat down unmasked beside his fellow justices, some decidedly up in years, others with health issues, but ready to hear arguments about President Biden’s vaccine mandate. They were all dutifully wearing face masks, including even all the Republican jurists, except one.   Gorsuch came in mask-less.

By not wearing a mask, was the associate justice whom President Trump appointed expressing in a blatant way his conservative views with a libertarian slant?   Some saw it was a clear sign of his having spent his life around Republican politics and vivid evidence that in conservative circles, masks are a despicable symbol of big government overstepping its authority by subjugating citizens.

Gorsuch had to know how his he-man, no-mask behavior could make other justices uncomfortable, like 83-year-old Stephen Breyer and 67-year-old Sotomayor, living with a Covid risk factor, diabetes.  Rather than sit next to Gorsuch on the bench, she noticeably chose that day to participate remotely.

However, the facts, which often tend to blur in politics, uphold the effectiveness of masks, especially medical ones like KN95 and N95, in reducing the spread of Covid, as studies show. In response to that evidence, the Supreme Court tells lawyers and reporters in the courtroom to wear medical masks.

So, can partisan loyalty trump Covid reality?  Sometimes even justices of the Supreme Court act less like impartial judges and more like advocates with left or right leanings.

Liberals probably believe that applies more to Republicans or if you’re a conservative, you probably feel Gorsuch has a perfect right to be mask free for isn’t this a free country?

Facts are often the casualties 

During the argument on Biden’s vaccine mandate, Sotomayor listed as evidence  Covid’s continuing threat before the court ruling that blocked Biden’s vaccine mandate for large employers. Gorsuch and Sotomayor were on opposite sides of the aisle, so to speak, as he opposed mandates, while Sotomayor favored them.

In making the case for mandates, Sotomayor first noted that Covid cases were surging, and hospitals were near capacity. She then turned her attention to children: “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”

There was one problem with what she said, however.  It’s untrue.

In fact, PolitiFact called it “way off.” 

Fewer than 5,000 U.S. children were in the hospital with Covid the week before, and many fewer were in “serious condition” or on ventilators. Some of the hospitalized children probably had incidental cases of the virus, meaning they had been hospitalized for other reasons and tested positive while there.

The facts are that Covid is overwhelmingly mild in children, even those who are unvaccinated. The risks are not zero, and they have risen during the current wave of infections, especially for children with major underlying health problems. But the risks remain extremely low.

Similarly, the risk of Covid hospitalization for children has been much lower than the risk from the respiratory virus known as R.S.V.

Actually, vaccinated elderly people are at much greater risk of severe Covid illness, than unvaccinated children.

So, Sotomayor’s statement aligned with other Americans on the left exaggerating Covid’s risks to children. 

 “Republicans consistently underestimate risks, while Democrats consistently overestimate them,” authors of a Gallup poll observed.

Even though partisanship may be alive and well at the highest court in the land, I’m sure Dr. King still would be one of its staunchest supporters.

About the Author: Besides an imaginative blogger, Tom Madden is a former journalist and an author of countless published articles and five books, including his latest, WORDSHINE MAN, available in March on Amazon.   He is the founder and CEO of TransMedia Group, an award-winning public relations firm serving clients worldwide since 1981 and has conducted remarkably successful media campaigns and crisis management for America’s largest companies and organizations.