Neil Gorsuch only US Supreme Court justice still not wearing a mask

Sotomayor, who sits next to him, recently opted to begin attending proceedings remotely

Supreme Court Justice Neil Gorsuch

Justice Neil Gorsuch is the only member of the US Supreme Court who is still declining to wear a mask during in-person proceedings, as the Omicron variant of the coronavirus surges in Washington DC and elsewhere.

Mr Gorsuch’s status as the last holdout on the bench was reported by NBC News on Monday. His decision is significant given a number of factors – some members of the court, including Justice Stephen Breyer, are at higher risk of severe Covid symptoms due to their age, and Justice Sonia Sotomayor, who sits to his side, is diabetic.

The situation may have contributed to Justices Breyer and Sotomayor’s recent decisions to begin attending the court’s proceedings remotely. Mr Breyer recently tested positive for Covid-19, though a court spokesperson assured NBC News in a statement that the test result was actually a false positive.

“As part of routine testing, Justice Breyer took a Covid-19 rapid test this morning prior to oral argument and the result was positive. That test has now been determined to be a false positive. A second rapid test was negative.”

“Subsequently, Justice Breyer received a negative test result from a PCR administered this morning,” the spokesman said. “The results of a PCR test taken by the Justice yesterday were also negative. Out of an abundance of caution, Justice Breyer participated in oral arguments today remotely from his chambers. Justice Breyer has been fully vaccinated, including a booster shot.”

All members of the high court are vaccinated, however, breakthrough infections are possible especially given the increased ability of the Omicron variant to elude the antibody protection provided by the vaccines.

The Supreme Court is due for another whirlwind season of decisions in the months ahead, with several major issues set to capture headlines. The court is set to decide two cases dealing with attempts to roll back abortion rights, and also determine whether former President Donald Trump will be able to assert executive privilege and block the release of documents to the January 6 committee from the National Archives.

A vacancy on the court in the months ahead could possible alter the messaging both parties are currently employing in the battle for control of the House and Senate ahead of the 2022 midterms, though Republicans do not have the votes in the Senate to prevent Democrats from naming a justice to the bench were an opportunity to arise before November as they famously did in the last months of the Obama administration.