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For Justice Ruth Bader Ginsburg, these are the best of times and the worst of times.
Having joined the Supreme Court a quarter-century ago after a long and distinguished career as an activist-advocate, she finds herself an unlikely, but flourishing, popular icon: RBG is played for respectful laughs on “Saturday Night Live”; her face and monogram appear on T-shirts, coffee mugs, and Halloween costumes; a romanticized version of her earlier life (“On the Basis of Sex”) is now playing in movie theaters.
Yet a few weeks short of her 86th birthday, her health is the dominant topic in the press. During the past two decades, Ginsburg has been treated for colon and pancreatic cancer and, in 2014, a stent was placed in her right coronary artery. In November, she fell in her office at the court and broke three ribs. In December, cancerous nodules were removed from her lungs at the Memorial Sloan Kettering hospital in New York.
This past week, for the first time in her tenure, she did not attend oral arguments and was reported by a spokesman to be “working from home while she recovers.”
Ginsburg has proven herself to be a person of extraordinary intellect and physical resilience and shows no signs of mental incapacity or behavioral distress. But in an institution where the appointment is for life and has a long history of aging justices remaining in situ with diminishing powers, what we know about Ginsburg must be cause for concern, in particular, to Chief Justice John Roberts.
I say this not because I know or suspect anything in particular about Ginsburg or believe she is under any obligation to anything other than her own conscience or consciousness of duty. But the Supreme Court is the single branch of government most authoritative and credible when perceived to be effectively insulated from politics. And the historical fact is that, when the health or well-being of an individual justice is problematical, it becomes a political issue for the court and, to some degree, the country as well.
Two anecdotes from the previous century may serve as illustration. In early 1932, it became evident that Justice Oliver Wendell Holmes, whose 90th birthday the previous year had been the occasion for a national celebration, including a live radio broadcast, had suffered a sudden and severe decline in his powers, interfering with his capacity to keep pace with the court’s work.
Chief Justice Charles Evans Hughes was in no mood to impose his will on the most formidable legal intellect of the times. But after canvassing his colleagues — Holmes’ closest friend on the court, Justice Louis Brandeis, first among them — Hughes undertook the “highly unpleasant” task of paying a visit to Holmes one Sunday morning to convey the opinion of his brethren.
The wounded veteran of Antietam and Chancellorsville immediately grasped his duty and, after asking Hughes to fetch the applicable statute for guidance, wrote a letter of resignation.
Things did not go so smoothly 40 years later when another gray eminence, 76-year-old Justice William O. Douglas, suffered a debilitating stroke in late 1974 that rendered him almost entirely incapable of functioning on the court. His colleagues agreed among themselves to postpone certain cases in which Douglas’ vote might have proved decisive. Matters were complicated by the fact that the incumbent President Gerald Ford had, in Congress four years earlier, introduced articles of impeachment against Douglas.
By the 1970s, chief justices did not exercise the same administrative powers they had in Hughes’ era, and so it fell to former Justice Abe Fortas to persuade his old friend Douglas to resign at the end of an awkward year.
None of this is to say that the state of Ginsburg’s health should be seen as precedent. But as Roberts’ recent response to President Trump makes clear, the chief justice sees himself as guardian of the court’s prestige and integrity and he must surely hope that Ginsburg’s recuperative powers remain impressive.