Below is my Hill column on the news that Associate Justice Ruth Bader Ginsburg had additional cancer treatment. I have previously written about “Ginsburg’s gamble” in refusing to resign during the Obama Administration. Already over 80, some encouraged her to leave the Court to allow Obama to pick her successor — and to safeguard dozens of cases impacting the lives of millions. The recurrence of her cancer treatment exposes not only the risks of that decision but also the absence of any way for the Court to deal with potential incapacities.
Notably, Justice Thomas could face the same questions. Long rumored to be considering retirement, a defeat by Donald Trump could hand his seat to a liberal justice and endanger a number of conservative holdings.
Here is the column:
Supreme Court Justice Ruth Bader Ginsburg is reportedly doing well after a course of radiation therapy for pancreatic cancer, but the news of her latest treatment sent Washington into collective cardiac arrest on Friday. Echoing many David Axelrod of CNN declared that President Trumppotentially filling her vacancy would “tear this country apart.”
Ginsburg is now 86, and this is her fourth bout with cancer following treatments in 1999, 2009, and 2018. She is not only a liberal icon on the Supreme Court but holds the critical fifth vote in areas ranging from reproductive choice to immigration to executive powers. Of all our government institutions, the Supreme Court is the most vulnerable to potential incapacities, not only because of its small number of nine justices, but the absence of any rule to deal with such eventualities.
Indeed, its history is rife with controversies over the health or capacity of its jurists. Republican Senate Majority Leader Mitch McConnell has stated that he fully intends to fill any Supreme Court vacancy arising before the end of the Trump administration. There is no question that the president would relish one more vacancy, but this is a standoff that favors Ginsburg. The Constitution has no provision to remove a justice for poor health or incapacity. It allows for only one way to remove a justice, which is impeachment. That rule has been tested repeatedly in history.
Justices have faced a variety of serious mental or physical incapacities over time. In the 19th century, Justice Nathan Clifford was described as a “babbling idiot” but continued to serve on the Supreme Court until his death. Justice Henry Baldwin was described as suffering from “incurable lunacy” and was hospitalized but served for more than another decade. Justice Ward Hunt was left speechless and paralyzed by illness but refused to resign unless given a pension. Congress finally relented and granted him a pension so it could wrest his seat from his hands.
In more recent times, Justice Frank Murphy and Justice William Rehnquist were alleged to have drug addiction issues while serving on the Supreme Court. The decision on when to retire is left to each justice, but the chief justice is expected to address questions over the fitness of the members. Back in the 19th century, Justice Robert Grier had three strokes and Chief Justice Salmon Chase finally insisted that he resign, though not until Chase secured his key vote to strike down the Legal Tender Act.
Of course, this will not work when the chief justice is the one whose capacity is in question. Chief Justice John Rutledge was described as experiencing “mad frolicks” and was “frequently so much deranged as to be in great measure deprived of his senses.” Having served by recess appointment, his nomination was the first to be rejected by the Senate. He later tried to commit suicide by jumping into Charleston Harbor.
The absence of any rule to deal with incapacities on the Supreme Court is particularly troublesome for a bench with only nine members. A single inactive member leaves the Supreme Court in a tie. For that and other reasons, I proposed more than two decades ago that the Supreme Court be expanded to 19 members. Democrats have now latched on to that idea for the wrong reason to stack the Supreme Court ideologically.
In an unprecedented filing, Democratic Senators Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand, warned conservative justices that they should change their voting patterns or face congressional intervention. They wrote that the Supreme Court “can heal itself before the public demands” it be “restructured in order to reduce the influence of politics.” While it is doubtful that Whitehouse and his colleagues could stack the Supreme Court, the threats make the Ginsburg news all the more rattling for Washington.
This is not the first time Ginsburg has been the subject of dire speculation. In July, she said of the late Republican Senator James Bunning, who died in 2017, “There was a senator, I think it was after my pancreatic cancer, who had observed with great glee that I was going to be dead within six months. That senator, whose name I have forgotten, is now himself dead, and I am very much alive.” Ginsburg planned to “stay longer” than the late Justice John Paul Stevens, who retired in 2010 at age 90. At the time, he was the second oldest serving and the third longest serving justice.
For her to do so, of course, would require her to hold her seat through the Trump administration. Thus, the return of her cancer unnerves many, including those who encouraged her to retire before President Obama left office so that he could appoint her replacement. Ginsburg opted to stay, and she clearly does not relish the prospect of Trump nominating her successor. She had said she would move to New Zealand if Trump were elected and later said sexism was a “major factor” in his victory.
For Ginsburg and her supporters, the decision not to retire during the Obama administration was akin to Captain Hernando Cortes burning his boats after landing in the New World. Ginsburg already was over 80 and effectively committed herself, and an array of key rulings, to as many as eight years to avoid handing Trump the chance to fill her seat on the Supreme Court and the ability to reverse cases dangling by one vote.
However, there is no evidence that Ginsburg has declined intellectually, and she has remained active and productive on the Supreme Court. She certainly has shown incredible stamina and resilience in fighting recurring cancer over the past 20 years. Hopefully that will continue, but her gamble still leaves many uneasy when so much hangs in the balance.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.