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NPR reporting on Supreme Court mask controversy merits clarification

Tourists visit the Supreme Court, Wednesday, Jan., 2022, in Washington, as the court heard arguments in the case, 'Federal Election Commission v. Ted Cruz for Senate,' about post-election contributions. (AP Photo/Jacquelyn Martin)
Jacquelyn Martin
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AP

On Tuesday morning, NPR Legal Affairs Correspondent Nina Totenberg reported that U.S. Supreme Court Justice Neil Gorsuch had declined to wear a mask in court even though he had been "asked," and as a result his colleague, Justice Sonia Sotomayor, was tuning in remotely.

On Wednesday, Chief Justice John Roberts issued a statement that was emailed to credentialed Supreme Court reporters denying that he had asked any justice to wear a mask. In response, Twitter flagged Totenberg's story as potentially false, citing the chief justice's statement. That evening on All Things Considered, Totenberg stood by her story.

Totenberg's story merits a clarification, but not a correction. After talking to Totenberg and reading all justices' statements, I believe her reporting was solid, but her word choice was misleading.

In describing the justices' mask habits, Totenberg's story said that prior to the holiday break, only Sotomayor was wearing a mask. When the court resumed this year, all the justices were masked except Gorsuch, and Sotomayor was conspicuously not in her chair.

Here's the key assertion in the story from Tuesday's Morning Edition: "The situation had changed, and, according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form or other, asked the other justices to mask up."

Later Tuesday on All Things Considered, she changed the word "asked" to "suggested," saying, "So Chief Justice John Roberts, understanding that, in some form or other, suggested that the other justices mask up."

Exactly how did Roberts, in some form, ask or suggest that his colleagues cover up? Totenberg told me she hedged on this: "If I knew exactly how he communicated this I would say it. Instead I said 'in some form.' "

That phrasing is at the core of the dispute. Totenberg said she has multiple, solid sources familiar with the inner workings of the court who told her that Roberts conveyed something to his fellow justices about Sotomayor's concerns in the face of the omicron wave. Totenberg said her NPR editors were aware of who those sources are and stood by the reporting.

Totenberg and her editors should have chosen a word other than "asked." And she could have been clear about how she knew there was subtle pressure to wear masks (the nature or even exact number of her anonymous sources) and what she didn't know (exactly how Roberts was communicating).

Totenberg and other Supreme Court watchers know that executive messages are conveyed with subtlety and diplomacy, not by clear edict. Adding that small detail, along with more information about her sourcing and a more accurate verb, would have provided a fuller picture. As she acknowledged the justices' statements on Wednesday, the veteran reporter further explained her wording choice at the end of her segment on ATC.

In the absence of a clarification, NPR risks losing credibility with audience members who see the plainly worded statement from Roberts and are forced to go back to NPR's story and reconcile the nuances of the verb "asked" when in fact, it's not a nuanced word.

Further confusing things, Sotomayor and Gorsuch issued a joint statement: "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."

Totenberg's story never claimed that Sotomayor directly asked Gorsuch to wear a mask. But Roberts' statement directly refuted NPR's reporting. "I did not request Justice Gorsuch or any other justice to wear a mask on the bench," he said.

The disconnect between the story and Chief Justice Roberts' statement is concerning to many NPR listeners and readers who wrote to us.

Eric Reed emailed: "When will Nina Totenberg be issuing a retraction or correction to her article, given that it is false and based [on] nothing at all, or at the very least more complicated [than] your article indicates?"

And Jesus Magallanes wrote, "I saw the 'in some form' part as a justification for standing by the reporting but there's no explanation why that is. A request, regardless of the form it came in, is a request, correct? In order for the story to be true as NPR first reported, Roberts would've had to have asked 'in some form,' but he said he didn't, full stop."

No one has challenged the broader focus of Totenberg's original story, which asserts that the justices in general are not getting along well. The controversy over the anecdotal lead, which was intended to be illustrative, has overwhelmed the uncontested premise of the story.

The way NPR's story was originally worded, news consumers must choose between believing the chief justice or believing Totenberg. A clarification improving on the verb choice that describes the inner workings of the court would solve that dilemma.

Copyright 2022 NPR. To see more, visit https://www.npr.org.