Ginsburg’s absence on bench renews concerns over health

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Justice Ruth Bader Ginsburg was absent from the Supreme Court bench for a second consecutive day on Tuesday, raising concerns about whether her recent health scares will keep her off the bench for a prolonged period of time.

Chief Justice John Roberts noted Ginsburg’s absence when the justices took their seats for oral arguments, repeating his remarks from Monday in which he said Ginsburg is “unable to be present” for the court’s sitting but will participate in the decisions using transcripts of the arguments and court briefs.

The 85-year-old justice missed her first oral argument this week in more than 25 years as she recuperates at home following a surgical procedure on Dec. 21 that removed two cancerous nodules from the lower lobe of her left lung.


Roberts did not say whether Ginsburg will be back at court on Wednesday.

“I don’t want to speculate about her health, but it doesn’t seem like a good sign,” said Elizabeth Slattery, a legal fellow at the conservative Heritage Foundation. “Perhaps she’s just resting up and will be back up to 100 percent soon.”

Slattery, who hosts the podcast “SCOTUS 101,” noted that justices like the late William Rehnquist have missed arguments before. Rehnquist, who served as chief justice, was unable to hear dozens of cases after he was diagnosed with thyroid cancer and underwent a tracheotomy in 2004.

Christine Venter, a Notre Dame Law School professor, noted in a 2017 journal article that Rehnquist missed oral arguments in 44 cases during his cancer treatment but still assigned himself to write the majority opinion in four cases that term.

“This isn’t unprecedented, but it is unusual for Justice Ginsburg,” Slattery said.

Daniel Epps, an associate professor of law at Washington University School of Law in St. Louis who co-hosts the podcast “First Mondays” about the court, said it’s too soon to say how Ginsburg’s absence this week will affect things in the long run, but he doesn’t expect her to step down anytime soon.

“We all think she’s highly unlikely to resign under this administration,” he said.

If Ginsburg were to step down, President Trump would surely nominate a justice to cement the court’s conservative majority and shift its ideological balance even further to the right for generations.

Epps added that if Trump is able to name her successor at some point, Chief Justice John Roberts would no longer be the fulcrum.

“He has shown some willingness to think about the court’s long-term legitimacy in ways other justices are less willing to do … and I think if Justice Ginsburg is replaced with another ideological hard-liner, you wouldn’t have the chief justice to moderate or slow the pace of change,” Epps said.

Ginsburg is known for her physical stamina. She survived two bouts of cancer prior to this most recent diagnosis — colon cancer in 1999 and pancreatic cancer in 2009.

The recent surgery followed treatment for fractured ribs, an injury she sustained after falling in her office on Nov. 7. The Supreme Court said scans performed before last month’s surgery indicated no evidence of disease elsewhere in her body and no further treatment is planned.

Appointed to the court in 1993 by President Clinton, Ginsburg has become a legal hero among liberals for her work over the years to advance gender equality. And never before has the justice, who’s been affectionately dubbed the “Notorious RBG,” been so popular.

In the past year there has been a CNN documentary, book and feature-length film starring actress Felicity Jones centered on the justice. Ginsburg has also gained attention for her workout routine.

The national spotlight, however, has only put more focus on her health in recent months, and with each development comes fresh worries about whether she’ll be able to stay on the bench until a Democrat wins the White House.

“Please take care of yourself RBG, we need you,” the Progressives of Kane County, in Illinois, tweeted Monday.

The Supreme Court last month said Ginsburg underwent a pulmonary lobectomy. After a lobectomy, most patients are back to their normal routines within one month, according to the American Lung Association.

“I would be willing to bet that she wanted to be on the bench yesterday and today, but that her doctors told her no,” Stephen Wermiel, a constitutional law professor at American University’s Washington College of Law, said Tuesday. “I would guess she was chomping at the bit to get back to the court and continue her record of never missing oral arguments.”

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