Justice Ginsburg Appears Strong In First Appearance At Supreme Court This Year

Feb 19, 2019
Originally published on February 19, 2019 6:07 pm

Supreme Court Justice Ruth Bader Ginsburg — the oldest, tiniest and possibly most well-known justice — returned to her perch on the bench Tuesday, asking questions in a firm and strong voice.

The 85-year-old liberal feminist icon underwent surgery for lung cancer in late December and since then has been recovering at home. In January, for the first time in her 25-year tenure, she missed being in court for oral arguments, but she participated in the decision of those 11 cases based on the written briefs and transcripts of the arguments.

At her return for Tuesday's arguments, Ginsburg was the first to ask a question in a patent case that normally would have drawn no press attention. Instead, the press rows were nearly full. At the end of the argument, Ginsburg got up carefully. As she descended the steps behind the bench, Chief Justice John Roberts walked next to her, ready to help. But Ginsburg walked on her own.

As luck would have it, after the January arguments, the court had scheduled a monthlong "writing break," allowing Ginsburg extra time to recuperate and work from home. Last Friday, Ginsburg returned to the Supreme Court building for the first time to participate in the justices' private conference, the first such conference scheduled since mid-January.

Ginsburg has been working hard to regain her strength. Friends say she is walking more than a mile a day and is once again working out with her trainer twice a week.

On Tuesday, all eyes were on her in an otherwise dull session. The diminutive justice can be hard to see behind the tall structure that towers above those mere mortals in the courtroom who are not up there on "the bench." Indeed, she is so tiny that spectators often can hear her voice but can only just see the top of "The Notorious RBG's" head.

Ginsburg, sketched here with the rest of the Supreme Court last year, worked from home on the cases the court heard in January. On Tuesday, she returned to the bench.
Dana Verkouteren / AP

Ginsburg is not attending the Academy Awards ceremony on Sunday, where the documentary RBG, about her life and her work as the architect of the fight for women's rights in the 1970s and '80s, has been nominated for an Oscar.

Doctors at Memorial Sloan Kettering Cancer Center operated on Ginsburg Dec. 21, removing one of the five lobes of her lungs. Days later she returned to Washington to recuperate. Doctors said that the pathology report on her lungs found no further evidence of disease and that no further treatment is planned.

While this is Ginsburg's third bout with cancer in 20 years, statistics indicate that patients with a lung cancer found early, as this one was, have a recovery rate of 70 to 80 percent. Ginsburg's cancer was found incidentally, when doctors noticed an abnormality in CT scans taken after she fell and fractured her ribs last November.

Ginsburg has made no secret of her desire to serve on the nation's highest court until someone more to her liking, not President Trump, is in the White House. She has no plans to retire anytime soon — though she is 85 years old, she can see the current Supreme Court moving decidedly to the right.

The hard-right ideological turn is taking place following Justice Anthony Kennedy's retirement last summer. Kennedy, a centrist conservative, often cast the deciding vote in closely divided cases. He was replaced by Brett Kavanaugh, a far more conservative judge and the second Trump appointee to the court.

That single appointment means that conservatives now occupy five of the nine seats on the Supreme Court; any further vacancy among the court's four liberals would mean not a 5-to-4 conservative majority but a 6-to-3 majority. In other words, room to lose one vote and still prevail in any given case.

Conservatives at the Federalist Society and the Heritage Foundation have been planning and hoping for this ideological turn for decades.

A Thomas retirement?

Washington legal circles are rife with rumors that Justice Clarence Thomas, the court's most conservative member, might retire this summer.

The theory is that were he to retire, Trump could nominate someone in his or her 40s to replace the 70-year-old Thomas, thus guaranteeing a longer-term grip on the Supreme Court seat Thomas now occupies.

Trump has hosted Thomas and his wife for dinner at the White House and met with Ginni Thomas and some of her conservative activist friends. Press reports of that meeting indicate that the president seemed surprised by some of the ideas espoused by some in Ginni Thomas' group, including, according to the New York Times, the notion that women do not have the musculature or lung capacity to serve in the military.

Trump may hold some unorthodox political views, but he clearly understands that the people he places on the nation's federal courts, not just the Supreme Court, will have an impact that lasts far longer than his presidency.

He has achieved a record-high number of appointments to the federal appeals courts, the courts that rank just below the Supreme Court. He has appointed 30 of those judges, more than any other president at this point in his first term.

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Justice Ruth Bader Ginsburg has been missing from the Supreme Court since the beginning of the year after surgery for lung cancer. She was absent for six days of arguments in January, the first she's missed in her quarter century at the court. Today, she was back. And in the court was our very own Nina Totenberg, NPR's legal affairs correspondent. Welcome to the studio, Nina.


CORNISH: You were there; so was Justice Ginsburg. How did she look and sound?

TOTENBERG: She was the first justice to ask a question. She sounded strong. She asked about three more questions in the course of argument that was heard this morning. When the justices got up to leave, she was slower than the rest. And the chief seemed to be ready to help her down the stairs, but no, no. She went on her own.

CORNISH: Can you tell us what the case was about?

TOTENBERG: (Laughter) You really don't want to know. It's a patent case. As Justice Alito put it, it's premised on the, quote, "possible fiction that Congress actually gave a second thought to the issue that's before us."

And I might add that nobody in the press corps would have been there but for the fact that Ruth Bader Ginsburg was returning to the bench. Although, she's been continuing to do her work from home.

CORNISH: Right. Do we know how she's doing, and is she going to, say, the Academy Awards, right? The movie "RBG" has been nominated for an Oscar.

TOTENBERG: She's doing well, walking more than a mile a day. She's back with her trainer a couple of times a week and has continued to do all the work of the court. Indeed, on the day of her surgery, I have learned, she voted in a case from the ICU.

Now, as to the Academy Awards, no, she's not going. She has to be in court the next day in Washington. But, Audie, I'm going.

CORNISH: OK. (Laughter).

TOTENBERG: I was in the movie a fair amount. So I'm cutting class to go.

CORNISH: All right. We're going to watch for that.

Another justice made some news today. Justice Clarence Thomas said that the court should revisit and reverse a landmark freedom of speech and press case. Can you tell us more about that?

TOTENBERG: You know, Thomas does this periodically. He stakes out a position that would reverse decades - sometimes even more than a century - of Supreme Court precedent. This time, his target was New York Times v. Sullivan, in which the court in 1964 ruled unanimously that public figures and those who thrust themselves into the public view cannot sue for libel or slander unless they can show that the media outlet that disseminated the offending material knew it was false or published with reckless disregard for the truth.

So today when the Supreme Court declined to hear an appeal from one of these cases that had been thrown out by the lower court, Thomas - Thomas used the occasion to write a 14-page treatise arguing that New York Times v. Sullivan was wrongly decided, that it does not comport with the original meaning of the Constitution and that it should be overruled so that public figures can more easily sue media entities for libel or individuals for defamation.

CORNISH: I want to go back to Justice Thomas for a second because you were writing today about rumors that he might retire.

TOTENBERG: The theory, you know, being bandied about in Washington legal circles is that Thomas, who is 70, might retire at the end of this term to give President Trump a third nomination to the court, someone just as conservative as Thomas but much younger and able to serve for another 30 years or so. The oxygen for the theory is that the justice and his wife have dined privately at the White House with the Trumps and that there have been other meetings with Trump.

You know, Audie, though, I have my doubts about this theory. I don't know why Thomas would step down now when, for the first time since his appointment in 1991, he has real, ideological influence on the court and soul mates. So instead of being a radical maverick, he has a chance of prevailing.

CORNISH: That's NPR's Nina Totenberg. Nina, thanks so much.

TOTENBERG: Thank you, Audie.