Justice Brett Kavanaugh tests positive for COVID-19

Result comes days before justices return for a new term and the first in-person oral arguments since the beginning of the pandemic

Supreme Court Justice Brett M. Kavanaugh crosses the finish line during the ACLI Capital Challenge 3-Mile Team Race in Anacostia Park on Wednesday.  (Tom Williams/CQ Roll Call)
Supreme Court Justice Brett M. Kavanaugh crosses the finish line during the ACLI Capital Challenge 3-Mile Team Race in Anacostia Park on Wednesday. (Tom Williams/CQ Roll Call)
Posted October 1, 2021 at 10:04am

Supreme Court Justice Brett M. Kavanaugh tested positive for COVID-19 on Thursday, just days before the justices return for a new term and the first in-person oral arguments since the beginning of the pandemic.

The court announced the result Friday morning, ahead of a formal investiture ceremony for Justice Amy Coney Barrett. Kavanaugh had no symptoms and has been fully vaccinated since January, the court said.

Kavanaugh had tested negative Monday morning — as did the other eight justices — prior to a conference that day where the justices discussed which cases to decide this term, the court said. His wife and daughters, who are also vaccinated, tested negative Thursday.

The result underscores how tricky a return to regular business can be for government agencies amid the pandemic, including at the nine-member Supreme Court, which has implemented a regular testing protocol as part of oral arguments in the courtroom that start Monday.

Kavanaugh ran Wednesday in the annual ACLI Capital Challenge, a three-mile charity road race sponsored by the American Council of Life Insurers that features teams from the three branches of government and the media.

Kavanaugh will not attend Barrett’s investiture Friday as a precaution. It’s unclear whether that precaution will carry over to the arguments in three days, which have been limited to avoid the spread of the coronavirus.

Mild cases of COVID-19 among vaccinated individuals are becoming increasingly common as the highly contagious delta variant barrels through communities, but physicians and public health experts say that shouldn’t be a cause for significant concern.

The Supreme Court building and arguments remain closed to the public. Courtroom access will be limited to the justices, essential court personnel, attorneys in the scheduled cases and certain journalists.

The court in September announced that attorneys who are arguing in person are required to take a PCR COVID-19 test on the morning before argument, and if it is positive, argue remotely over the telephone instead of in the courtroom.

“While we hope that the chances of this occurring are small, counsel should give some advance consideration to the telephone setup that they would use in the event that it is necessary,” the court’s clerk wrote in guidance to attorneys.

The court announced that it will provide a live audio feed on its website of all oral arguments scheduled for the first three months of the term.

The justices made history in May 2020 when they participated in oral arguments with lawyers via telephone, as C-SPAN and others aired the first live internet audio broadcast of the high court’s proceedings.