Court Battles

Supreme Court’s future rides on Ginsburg’s health

Some offered to donate their ribs, others recommended cloaking her in bubble wrap.

The reactions following news that Justice Ruth Bader Ginsburg had fractured three ribs in a fall at her office on Nov. 7 may have been made in jest, but some no doubt were rooted in real worry.

At 85, Ginsburg is the oldest member of the Supreme Court, and this month’s health scare left many wondering if she’ll really serve for five more years as promised.

But she’s not the only one in recovery mode.

{mosads}Washington is slowly recuperating from the bitter battle over Justice Brett Kavanaugh’s confirmation. Another vacancy on the bench would surely lead to an explosive fight with liberals trying in vain to prevent President Trump from turning the court into a conservative stronghold with a third nominee.

The repercussions of Trump appointees are why some on the left have criticized Ginsburg and 80-year-old Justice Stephen Breyer — another aging member of the court’s liberal wing — for not stepping down when former President Obama was in office.

“Given that she wants her vision of the law to prevail, it was a mistake to hang in there indefinitely,” said Daniel Epps, an associate professor of law at the Washington University School of Law. “If she stays for five more years from now, that’s 2023. Even if there’s a Democratic president elected in 2020, it’s quite possible that Republicans might control the Senate in 2023.”

Epps said that for now, the future of the court is riding on Ginsburg’s health.

“We shouldn’t be in this position where the future of certain policies turn on whether this old woman is healthy or not,” he said.

Ginsburg initially went home after she fell in her office, but after feeling discomfort during the night she called Supreme Court police to take her to the hospital. 

Her injury caused her to miss a day of court, but not one when the justices heard oral arguments.

Supporters say Ginsburg isn’t just the court’s leading liberal, she’s also incredibly resilient.

The justice’s personal trainer, Bryant Johnson, told The Hill on Monday that Ginsburg would be resuming her notoriously challenging workouts this week. Johnson said he would adjust Ginsburg’s routine, which includes pushups and planks, to help with her recovery.

“I always use the acronym TAN — tough as nails,” he said when asked to describe her. “As a matter of fact, I really have to kind of make her rest a little.”

After all, ribs heal — a process Ginsburg knows all too well. 

She cracked two ribs in 2012 but didn’t miss a day in court, according to The Washington Post. Ginsburg has also survived two bouts of cancer.

“I think she has shown she is close to immortal,” said Caroline Fredrickson, president of the American Constitution Society. “She has gone through a lot and she always comes back fighting.”

Pete Davidson and Chris Redd rapped a tribute to Ginsburg on “Saturday Night Live” earlier this month to highlight her resolve.

“Survived a depression and Twitter attacks from Trump, broken ribs can’t stop her she eats that shit for lunch,” they sang as Kate McKinnon, dressed as Ginsburg, chowed down on barbecue ribs.

During his campaign in 2016, Trump called on Ginsburg to resign in a tweet, saying her mind is shot, after she said it would be time to move to New Zealand if he were elected.

At the Medal of Freedom ceremony at the White House on Nov. 16, Trump acknowledged Ginsburg’s presence and said he was glad to see her feeling great.

Experts credit Ginsburg’s professional success to her resilience and drive.

“She graduated at the top of her class from Columbia Law School in 1959 and didn’t get a single job offer,” said Lauren Moxley, creator of The Ginsburg Tapes, a forthcoming podcast focused on Ginsburg’s six Supreme Court arguments.

After clerking and studying civil procedure, Moxley said, Ginsburg got a job teaching at Rutgers Law School — one of 14 tenure-track teaching positions available for women in law schools at the time. She went on to join the American Civil Liberties Union and co-found its Women’s Rights Project. Former President Clinton appointed her to the Supreme Court in 1993.

Fortitude or not, some legal scholars say there should be term limits or an age cap for Supreme Court justices.

In a 2006 law review article for Northwestern University School of Law, Steven Calabresi, chairman of the Federalist Society — the conservative legal group that has helped Trump select judicial nominees — proposed a system of staggered, 18-year term limits for Supreme Court justices.

“Mental decrepitude, a rare problem in the past, now strikes from a third to a half of justices before they are willing to retire,” he said in the article he co-wrote with James Lindgren, a fellow law professor at Northwestern.

They said it would take a constitutional amendment to impose term limits.

Calabresi did not respond to a request for comment on whether he still supports that proposal.

Other conservative court watchers have been reluctant to set parameters on when justices should step down.

“Generally, I’m not supportive of term limits for Supreme Court justices,” said Elizabeth Slattery, a legal fellow at the conservative Heritage Foundation. “It depends on the health and well-being of each individual justice.”

For now, supporters say Ginsburg isn’t going anywhere.

“She’s too tough to have her health stop her during the age of Trump,” Fredrickson said. “There’s too much at stake for our Constitution.”

Tags Brett Kavanaugh Donald Trump Supreme Court
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