NPR public editor admits SCOTUS story 'merits clarification,' says reporter's word choice was 'misleading'

A top editor at NPR acknowledged a report that received unprecedented blowback from three Supreme Court justices "merits clarification" but stopped short of offering a correction or a retraction. 

NPR public editor Kelly McBride addressed the ongoing controversy involving a story published Tuesday that alleged Justice Neil Gorsuch refused to wear a mask despite being asked by Chief Justice John Roberts stemming from health concerns of their colleague Sonia Sotomayor, who has diabetes and makes her vulnerable to COVID. All three of them refuted NPR's reporting. 

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On Thursday, McBride admitted that the report written by NPR's chief legal affairs correspondent Nina Totenberg "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," McBride wrote. 

McBride zeroed in a specific except from Totenberg's report regarding how the Supreme Court justices were adjusting to COVID precautions had changed following the holiday break during the Omicron surge.

Totenburg had written, "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."

McBride noted that later Tuesday, the word "asked" was changed to "suggested."

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"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,’" McBride recalled her exchange with Totenberg. "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)," McBride continued.

The editor also admitted NPR "risks losing credibility with audience members" without any sort of clarification and that "the disconnect between the story and Chief Justice Roberts' statement is concerning to many NPR listeners and readers who wrote to us."

"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," McBride wrote. "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."

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Totenberg previously doubled down on her reporting, writing in a follow-up article Wednesday, "What is incontrovertible is that all the justices have at once started wearing masks—except Gorsuch. Meanwhile, Justice Sotomayor has stayed out of the courtroom. Instead, she has participated remotely in the court's arguments and the justices' weekly conference, where they discuss the cases and vote on them."

In Totenberg's initial report, the veteran journalist alleged tensions were brewing between Gorsuch and Sotomayor over his refusal to wear a mask regardless of her health concerns. 

"Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked," Totenberg wrote. "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."

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Fox News' Shannon Bream reported Tuesday on "Special Report" that NPR's reporting was "not accurate," according to a source, saying there was never a request by Roberts for everyone to wear masks, Sotomayor never made such a request to Gorsuch and Gorsuch never refused to wear a mask. 

On Wednesday, Gorsuch and Sotomayor issued an unprecedented joint statement declaring the NPR's story "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," the statement read. 

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Roberts flatly denied NPR's reporting, stating, "I did not request Justice Gorsuch or any other Justice to wear a mask on the bench."

NPR repeatedly defended its report both after the Gorsuch-Sotomayor statement and the Roberts statement, telling Fox News it was standing by Totenberg's report.