Ginsburg’s Recurring Cancer Exposes Vulnerability On The Court

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.

106 thoughts on “Ginsburg’s Recurring Cancer Exposes Vulnerability On The Court”

  1. There is a minor issue regarding incapacity.

    The more significant issue is that the court should never be constantly splitting 5-4 on ideological grounds.

    Both factions have serious issues.

    What is disturbing is that with few exceptions SCOTUS cases should not actually be hard.

    If the law is constitutional – follow the law.
    Take the constitution to mean what it said at the time it was written.

    If a law runs afoul of the constitution – it is the congresses problem to fix it.
    If the law does not say what we want it to say – it is congresses problem to fix it.
    If the constitution does not say what we want it to say – amend it.

    What we do not want is 90 robed senior citizens deciding what is best for all of us, rather than what the law and constitution actually say.

    We have had some problems with this from our founding – but they have become progressively worse (a pun), as we have grown the government beyond what the constitution prescribed, without changing the constitution to allow for the larger government we want.

    It is supposed to be hard to expand the power of government,. It is supposed to be hard to infringe on our rights.
    It is supposed to be hard to make law,
    It is supposed to be hard to change the constitution.

    There are occasions when these changes are needed.
    But if necessary changes are too easy – then bad changes are too easy too.

    Our courts have become politicized – because they have become a tool to accomplish what we have been unable to achieve politically – because those things are supposed to be hard.

    The courts are not supposed to be a short cut to passing constitutional laws, or to fundimental transformations of society that we have been unable to accomplish any other way.

    Frankly we are close to the point that the job of a Supreme Court Justice could be done by modern computer software.

    It is not a task that should involve ideology, or even judgement.

    In fact it should be obvious that we can not have “the rule of law” when the rules for understanding the law are not formal, rigid, and determinative.

    The actual rule of law – requires that each of us can determine our conduct – despite ignorance of the minutia of the law.

    It is often said that “ignorance of the law is no excuse” – but there is a more important corallary – law that the ignorant do not inherently know, is no law at all.

    Complexity belongs in our private relationships with each other – not in the fundimentals of criminal law, or how we govern ourselves.

    If you are using – congress, the president, the courts, the bureacracy, govenrment in any way to modify the conduct of your neighbor – you are likely WRONG.

    If you wish to change the world – start with yourself, and accomplish whatever change you desire through persuasion – not force – aka government.

    1. If you wish to change the world – start with yourself, and accomplish whatever change you desire through persuasion – not force – aka government

      Today’s Gospel reading in the Catholic Lectionary quotes the original Author of your counsel on this Memorial of Saint Monica, mother of Saint Augustine. Scribes and Pharisees were considered the legal experts and guardians of the law during the time of Christ.

      Gospel of Saint Matthew 23: 23-26

      Jesus said:

      “Woe to you, scribes and Pharisees, you hypocrites.
      You pay tithes of mint and dill and cummin,
      and have neglected the weightier things of the law:
      judgment and mercy and fidelity.
      But these you should have done, without neglecting the others.
      Blind guides, who strain out the gnat and swallow the camel!

      “Woe to you, scribes and Pharisees, you hypocrites.
      You cleanse the outside of cup and dish,
      but inside they are full of plunder and self-indulgence.
      Blind Pharisee, cleanse first the inside of the cup,
      so that the outside also may be clean.”

      http://www.usccb.org/bible/readings/082719.cfm

  2. Over the years many of our best justices on the Supreme Court have been great when over the age of 70. Does Turley want them all to retire at age 70? Or 65? How old is he? I retired as a lawyer at age 56 and do not regret it. Some of my favorite judges before whom I argued appeal cases were older than 70. Myron Bright was excellent. Theodore McMillian was excellent. Some lawyers were great well into old age. Rush Limbaugh the lawyer in Cape Gieardeau, MO was great. Thurgood Marshall was great.

  3. Sorry lefties…RBG ‘aint making it to 97, Trump isn’t going to replace her with Chucky Cheese, and Mitch isn’t going to wait until the next election to move the nominee forward.

    If and when the time comes, the replacement will be Amy Coney Barrett and it will be a blast watching the Dems blow themselves up again.

  4. RBG’s physician at Memorial Sloan Kettering is the eminent Rad Oncologist Dr. Chris Crane. Given his findings in the July 2019 JCO on locally advanced pancreatic cancer, one should assume nothing good about her prognosis.

    Ablative radiation therapy for locally advanced pancreatic cancer: techniques and results
    https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6555709/

    Standard doses of conventionally fractionated radiation have had minimal to no impact on the survival duration of patients with locally advanced unresectable pancreatic cancer (LAPC). The use of low-dose stereotactic body radiation (SBRT) in 3- to 5-fractionshas thus far produced a modest improvement in median survival with minimal toxicity and shorter duration of treatment, but failed to produce a meaningful difference at 2 years and beyond. A much higher biologically effective dose (BED) is likely needed to achieve tumor ablation The challenge is the delivery of ablative doses near the very sensitive gastrointestinal tract.

      1. Paul we are all dead men hobbling. Returning to your question, yes she can probably kick Mespo’s arse in the gym.

  5. The democrats will probably take her to a taxidermist after she kicks off and try to tell us she’s more reserved as she gets older.

  6. Reduce the Supreme Court to one manageable Justice under strict Congressional oversight and review.

    Impeach, convict and severely penalize that Justice for perversions, deviations and corruptions

    of the “manifest tenor” of the literal words of the Constitution.

    The Supreme Court is nothing but the comparison of actions to words sans intellectualizations, interpretations or dictatorship.

    1. George – I always thought that we should move Washington DC to the middle of the country where he would be a part from lobbyists and the influence of the eastern seaboard. I think the quality of justice that we would get would be far different. Also we would start to get some justices they came from other parts of the country.

      1. PCS, how many Presidents, Chairman, Joint Chiefs of Staff, Army Commanders, Division Commanders, CIA Directors, DNI’s,

        Attorneys General, Ship Captains, CEO’s GM, CEO’s Ford, CEO’s Apple, CEO’s Boeing, etc. are there?

        Answer: ONE.

        When necessary, one judge in a court of law determines, their alignment with or without the law.

        We ask the judicial branch to tell us what we already know, and that is what the Constitution says, requires, allows and denies; we

        can all read English. We all know that Americans may keep and bear arms, for example. Neither one judge nor nine Justices may

        modify that phrase of the English language in the Constitution.

        The only question in the process of adjudication is what degree of politicization and corruption has occurred.

        With the SCOTUS limited to one Justice, the politics would be removed, biases laid bare and the law enforced – literally, “…courts

        of justice…must…declare all acts contrary to the manifest tenor of the Constitution void,…” – or the Justice would be impeached,

        convicted and penalized.
        ______________________________________________________________

        “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        – Alexander Hamilton

  7. How old is Biden? 76? Trump? Ginsberg will outlive a lot of people. She might be on the bench until she is a hundred. We had a judge on the 8th Circuit who did real well until he died at age 97. Quite a Bright person.
    What IF Obama had replaced her? That person could have cancer now.

    Do not appoint anyone who smokes. Or anyone who drinks too much or laughs too loud. Too dumb to make in that DC town. Where they keep the smart folks down.

    If she goes soon then Trump will appoint Chucky Cheese. Or Jack Mehoff. Or Lani Ringer. Or Harold Dunrouffukedme. Or some dork from George Washington School of Dog Paws.

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