The stunning news on Feb. 5 of Justice Ruth Bader Ginsburg's tough new battle with cancer instantly changed the dynamics of the Supreme Court, posing painful challenges not only for the feisty justice but for the other justices and the Obama administration.
With unusual transparency, the typically close-mouthed Court announced that Ginsburg was diagnosed with "early-stage" pancreatic cancer in late January and underwent surgery for removal of a one-centimeter tumor from her pancreas.
The 75-year-old justice is expected to stay in the Memorial Sloan-Kettering Cancer Center in New York at least through Thursday. A day after her surgery, Ginsburg let it be known through Court spokeswoman Kathy Arberg that she plans to be on the bench when the Court's current recess ends Feb. 23.
The immediate round of media speculation about her possible retirement -- and who might replace her -- may even bolster her determination to remain on the Court, says one Court watcher.
"She's going to grit her teeth even harder in terms of staying," says David Garrow, a University of Cambridge professor who has written extensively about the health of justices. "And I would think the other justices are furious beyond belief" about the media speculation that followed Ginsburg's announcement. Justices resented the spotlight that shone on the late Chief Justice William Rehnquist in 2005 during his difficult battle with thyroid cancer.
"God willing, I think she will continue to stay on the Court as long as she can," says Latham & Watkins associate Lori Alvino McGill, who clerked for Ginsburg in 2006. "I don't think this will shake her resolve." In 1999, Ginsburg was diagnosed with colorectal cancer, and she recovered fully.
Yet it is inevitable that the Obama administration will hasten its preparation -- already under way before her illness -- for a possible Supreme Court vacancy. Because Ginsburg is the only woman on the Court, the list of names being gathered will be dominated by females.
"Appointing a woman is of critical importance for the integrity of the Court," says Virginia Sloan, president of the nonpartisan Constitution Project, who added, "Of course we all hope Justice Ginsburg will be fine."
Word of Ginsburg's illness spread quickly at the annual convention of the National Association of Women Lawyers in Atlanta on Feb. 5, says association president Lisa Horowitz, professional development manager at McDermott, Will & Emery in D.C.
"Everyone was pretty upset," she says. "We hope she will stay on the Court for a long time," Horowitz adds, but if there is a vacancy, the appointment of a woman is "critical to ensure robust deliberation and discussion, and excellent and fair decisions." She notes that one-third of U.S. lawyers and half of all law students are women.
Names that are already gaining attention include appeals court judges Sonia Sotomayor of the 2nd Circuit and Diane Wood of the 7th. Michigan Gov. Jennifer Granholm (D) and Homeland Security Secretary-designate Janet Napolitano are also possibilities, having served as attorney generals of Michigan and Arizona, respectively. Former Harvard Law School dean Elena Kagan, already nominated as solicitor general, would also be well-positioned for a higher post.
In the short term, the ripple effect of Ginsburg's news will also be felt inside the Court. Depending on the course of her post-operative recovery and treatment, her illness could affect Court operations through the end of the term or beyond and may alter not just her own tenure but those of other justices. Conventional wisdom has it that Justices John Paul Stevens and David Souter may leave the Court sooner than later. But if such plans exist, they will almost certainly be put on hold until Ginsburg's status becomes clear.
A strong but unspoken ethic among the justices frowns on more than one departure from the Court per term, because of the burden it would place on all three branches of government. That virtual rule was bolstered, no doubt, by the rapid sequence of events triggered when Sandra Day O'Connor announced her retirement in July 2005 and Rehnquist suddenly died that September.
SIGNIFICANT CASES
As for the work of the Court, the justices have a docket of significant cases facing them through the end of the term. Among them are a dispute over when a campaign donation should trigger the recusal of a state judge, a constitutional challenge to the Voting Rights Act, and a test of the rights of an enemy combatant confined in a military brig on U.S. soil.
If Ginsburg is not able to return to the bench later this month, she can still participate in those and other cases by hearing the taped audio of oral arguments and by reading briefs. For Rehnquist's absence from the Court during his cancer treatments, he said he would only vote in cases where he was needed to break a 4-4 tie, but that is not a rule.
When the late Justice Lewis Powell Jr. underwent surgery for prostate cancer in 1985, he was left "weak as a kitten" and did not return to the bench for 11 weeks, according to the 1994 biography of Powell written by University of Virginia Law School professor John Jeffries Jr.
Powell stayed on the Court until 1987, but he was in a weakened state. Partly for that reason, Jeffries wrote, Powell could not craft a compromise in the 1986 Bowers v. Hardwick decision upholding Georgia's anti-sodomy law, a landmark defeat for gay rights. "Infirmity made it more difficult to summon the sustained mental energy required to translate Powell's uncertain views into law," Jeffries wrote.
But that does not mean Ginsburg will be similarly weakened, Jeffries said after news of her illness broke. "A relatively short absence, especially if she can keep working, won't matter."
Ginsburg's determination to stay on the Court was clear well before announcement of her illness. Several people who attended her law clerks' reunion last summer quoted Ginsburg as saying that anyone who asks should be told she has no intention of leaving soon. In a speech at Columbia University last October, she dropped another hint about her plans to stay.
Ginsburg said the late Justice Louis Brandeis "became a justice at age 60, as I did. He remained on the bench until age 83. My hope and expectation is to hold my office at least that long." To match Brandeis' tenure, she would have to remain on the Court until 2016.
Ginsburg was a judge on the U.S. Court of Appeals for the D.C. Circuit when President Bill Clinton named her to replace Justice Byron White. Clinton said he picked her in part because of her longtime advocacy for women's rights as an American Civil Liberties Union attorney, describing her as the Thurgood Marshall of the women's rights movement.
On the Court, as she was on the D.C. Circuit, Ginsburg has usually been a more moderate voice than some expected. She is the second woman on the Court, and when the first, O'Connor, retired in 2006, Ginsburg said she felt lonely without her. O'Connor, herself a breast cancer survivor, helped Ginsburg through her time with colorectal cancer.
In a 2007 interview with Legal Times, Ginsburg said, "There is nothing that carried me through the year that I had cancer as [much as] being on this Court, and saying to myself, ‘You have a sitting coming up; don't let this occupy your time. You have something to do.' "
At the Washington Hospital Center, where she had been treated, Ginsburg said in a 2001 speech, "Cancer is a dreadful disease." But with caring medical staff and honest reports from her doctors, she said she was able to get through it.
"Knowing what to expect, I was able to schedule therapy to fit the Court's calendar and missed no sittings that term," Ginsburg said. "Work, I found, was the best balm." Ginsburg's husband, Martin, a Georgetown University Law Center professor, is a 50-year survivor of testicular cancer.
"There is nothing like a cancer bout to make one relish the joys of being alive," Ginsburg said during the talk. "Each thing I do comes with a heightened appreciation that I am able to do it."
