The Supreme Court justices returned for the court’s first oral arguments of 2019 last week without America’s favorite Octogenarian, Justice Ruth Bader Ginsburg. Seasoned litigators and Ginsburg fanatics alike were shocked by Chief Justice John Roberts’ announcement on Monday that Ginsburg would miss oral arguments.
The announcement came less than three weeks after the Supreme Court issued a statement regarding Ginsburg having a procedure to remove from her left lung cancerous nodules, which had been discovered when she was treated for broken ribs following a fall in November.
Court spokeswoman Kathy Arberg issued a statement on Friday indicating Ginsburg’s recovery is “on track” and that “[p]ost-surgery evaluation indicates no evidence of remaining disease, and no further treatment is required.”
News outlets are reporting that Ginsburg will be absent from oral arguments this week as well. Those headlines have caused a flurry of speculation from fan and foe alike, but it is important to put this absence into context of Supreme Court history.
It’s common for justices to recuse themselves from participating in cases for a variety of reasons. For example, they might have a financial stake in the litigation… They could have previously participated in the case as a litigant… They also may have ruled on the case as a lower court judge, as we’ve seen with newcomers Justices Neil Gorsuch and Brett Kavanaugh. In all these instances, recusal is expected in the interest of justice and fairness.
Ginsburg was not recused, however, from the cases argued last week. She will still participate—just not in person. Roberts explained on Monday that she will review the briefs and the transcripts of oral arguments before casting her vote…
To be sure, a nine-member court is preferable, but the court managed with eight members for nearly 14 months after Justice Antonin Scalia’s sudden passing in February 2016.
The main impact was that the court tended to shy away from taking up any new cases raising particularly contentious issues (and, of course, the vacancy had a bit of an effect on the 2016 presidential election). But of the cases resolved by the eight-member court, only a handful of decisions ended up tying 4-4…
This is all to say that absences are not unprecedented for members of the Supreme Court. They are, however, extremely unusual for Ginsburg. Last week marked the first time in her 25-year tenure on the Supreme Court that she missed an oral argument, including when she previously battled cancer in 1999 and 2009, and when her beloved husband, Marty, died in 2010.
It’s also important to note that, while oral arguments receive a lot of attention from the media, they are a small part in the long life of a Supreme Court case. The justices review briefs prepared by the litigants, “friend of the court” briefs filed by other interested parties, lower court opinions, and relevant past Supreme Court opinions.
Ultimately, their decisions are based on much more than an hour of oral arguments… Ginsburg’s absence from oral arguments is not devastating to the integrity of the court by any means.
Even so, Ginsburg’s absence draws great speculation. Whispers that the Trump administration is actively vetting candidates for her position on the high court are heard around Washington, which is still recovering from the bruising Kavanaugh confirmation.
This administration is, perhaps, better prepared to nominate another Supreme Court justice should a vacancy arise than a typical administration. That’s because President Donald Trump already seriously considered several candidates for the past two vacancies (including 7th Circuit Judge Amy Coney Barrett and 3rd Circuit Judge Thomas Hardiman), and there are plenty of other options on his highly publicized Supreme Court shortlist.
At this point, however, we shouldn’t read too much into Ginsburg’s absence, and instead, we should wish her a speedy recovery.
Our Comment:
Justice Ginsberg’s absence following her third cancer surgery is ominous. She obviously has a high level of stamina. But whether or not she will remain effective on the court remains to be seen. If she is near the end of her time on earth and Mr. Trump gets to pick a third nominee to the high court, he will have the opportunity to shape court decisions for decades to come in the future in line with conservative principles. It will also likely strengthen Roman Catholic influence on the court, since the man vetting and recommending Mr. Trump’s nominees is Leonard Leo, a committed Roman Catholic with a powerful influence on conservative judges.
Prophetic Link:
“God’s word has given warning of the impending danger; let this be unheeded, and the Protestant world will learn what the purposes of Rome really are, only when it is too late to escape the snare. She is silently growing into power. Her doctrines are exerting their influence in legislative halls, in the churches, and in the hearts of men. She is piling up her lofty and massive structures in the secret recesses of which her former persecutions will be repeated. Stealthily and unsuspectedly she is strengthening her forces to further her own ends when the time shall come for her to strike. All that she desires is vantage ground, and this is already being given her. We shall soon see and shall feel what the purpose of the Roman element is. Whoever shall believe and obey the word of God will thereby incur reproach and persecution.” The Great Controversy, page 582