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Justice Kavanaugh Tests Positive for Covid

Justice Kavanaugh Tests Positive for Covid
Justice Brett M. Kavanaugh will not attend a ceremonial investiture on Friday because of his positive test.
Credit…Pool photo by Jabin Botsford

Adam Liptak

Justice Brett M. Kavanaugh has tested positive for the coronavirus, a Supreme Court spokeswoman said on Friday. She said the justice had been fully vaccinated since January and that he was not showing symptoms of the virus.

Justice Kavanaugh, 56, was tested on Thursday before the ceremonial investiture of Justice Amy Coney Barrett at the court on Friday morning, the spokeswoman, Patricia McCabe, said in a statement.

“Justice Kavanaugh’s wife and daughters are also fully vaccinated, and they tested negative on Thursday,” Ms. McCabe said. “As a precaution, Justice and Mrs. Kavanaugh will not attend Justice Barrett’s investiture this morning.”

All of the justices were tested on Monday morning before their private conference to discuss the petitions seeking review that had piled up over their summer break. “All tested negative, including Justice Kavanaugh,” Ms. McCabe said.

It was not immediately clear how the development would affect in-person arguments at the court, which were to resume on Monday after a hiatus of more than 18 months.

The arguments will not be open to the public, but the court will provide live audio. The lawyers arguing before the court are required to be tested the morning before they argue.

“An arguing attorney who receives a positive test will not argue in person, but will instead be expected to participate remotely by telephone connection to the courtroom,” according to an announcement posted on the court’s website this week.

The lawyers are required to be masked in the courtroom “except when presenting argument.”

The court last heard in-person arguments in March of last year. Since then, arguments have taken place by telephone, with the justices asking questions one by one in order of seniority, an arrangement many found inert and stilted.

A positive aspect of the arrangement was the full participation of Justice Clarence Thomas, who very seldom asked questions in the courtroom.

When the justices return to the bench, they will adopt a hybrid model of argument, starting with the familiar and dynamic free-for-all in which they pepper the lawyers with questions, build on each other’s comments and not infrequently interrupt the lawyers and one another. That will be followed by a round of one-by-one questioning.

The new term will include two blockbusters, on gun rights and abortion. In November, the justices will hear arguments on the constitutionality of a restrictive New York gun control law that strictly limits carrying guns in public. The court has not issued a major Second Amendment decision in more than a decade, and it has said next to nothing about how it applies outside the home.

In December, the justices will hear a challenge to a Mississippi law that bans most abortions after 15 weeks of pregnancy. The case, a frontal challenge to the constitutional right to abortion established in Roe v. Wade in 1973, may well give rise to the court’s most consequential decision in decades.

Over the summer, the court’s conservative majority issued a series of orders in response to emergency applications, blocking Biden administration programs on asylum and evictions and refusing to halt a Texas law that bans most abortions after six weeks.

Recent polls have shown a sharp drop in the court’s public approval. In apparent response, several of the justices have made public comments denying that politics or partisanship plays a role in their decisions.

On Thursday, for instance, Justice Samuel A. Alito Jr. defended the court’s recent rulings on what critics call its “shadow docket,” rendered without full briefing or oral argument, saying the court has followed consistent procedures and had no choice but to act quickly and offer only limited reasons for its rulings.