Only a few months earlier, Ginsburg had declared himself “cancer free,” and the court statement emphasized that Ginsburg’s gallbladder condition was “benign” and that the treatment he was facing was “non-surgical.”
On Friday, however, Ginsburg confirmed that the May statement did more to hide the truth about her health than to illuminate it.
It turns out that in February, justice learned that a regular “scan” found injuries to his liver. A biopsy appears to have confirmed that the growths were malignant cancer, as Ginsburg says he embarked on immunotherapy and then chemotherapy when the first treatment “was unsuccessful.”
The five-month delay that preceded the Ginsburg statement on Friday was just the latest episode to spark concern among court watchers that the judges are being too opaque about their health.
Earlier this month, it became known that Chief Justice John Roberts had fallen, bled profusely, and required stitches to his head while walking in the morning near his Maryland home in late June. Roberts spent the night in the hospital, but the court did not acknowledge the episode until The Washington Post received a suggestion and asked for comment.
And in 2016, the death of Judge Antonin Scalia during a hunting trip in Texas shocked the political and legal world.
However, days later, a sheriff’s report revealed that the person named by Reagan, 79, suffered from a number of undisclosed diseases, including diabetes, high blood pressure, chronic obstructive pulmonary disease, obstructive sleep apnea, and the coronary arteries. Scalia looked a bit fat, but the public had no idea of the long list of woes.
Critics say the public has a right to more information about the judges’ medical condition. With the court heavily divided on many fundamental issues, an unexpected health crisis by a judge has the potential to overturn Officer Washington. But the fact that judges enjoy tenure of life and have little supervision to monitor their competence also makes questions about their health more urgent than for other public officials.
“On the one hand, Ginsburg should be commended for the declaration [ on Friday,] but from what he said … it looks like we should have had a statement several months ago, “said David Garrow, a renowned legal writer and historian of the civil rights movement.
Garrow argues that the evasion that she and other judges have implicated around her personal health undermines the public’s right to know about the performance of public officials who commonly remain in office at age 80, long after most of Americans his age have retired.
“Why in a society that, for want of a better word, is modernizing as quickly as this, we have so much disproportionate power in the hands of people over 80?” asked Garrow, author of a key law review article two decades ago, denouncing what he called “decrepitude” in the Supreme Court.
“I’m going to 68 now and I know very well that I’m not as good as 10 years ago,” added Garrow, a former professor of law at Emory University and the University of Pittsburgh. “We have, in my opinion, a sad and tragic culture of simply failing and refusing to acknowledge, even delusion, our loss of capacity.”
Ginsburg insisted on Friday that he was still at the top of his job, saying he was still “fully capable” of handling his job “at full steam.”
It’s unclear what prompted Ginsburg to publicly acknowledge Friday that his cancer returned nearly half a year ago. He was in the hospital again earlier last week for an infection that may have been caused by a blocked stent placed in his bile duct last year. That may have altered the calculation of continuing to keep liver cancer a secret.
Ginsburg’s statement on Friday afternoon suggested that he had decided to break his five-month silence on the recurrence because he is confident it is improving. “Satisfied that my course of treatment is now clear, I am providing this information,” she wrote.
In his days as a court litigator, Ginsburg could have ignored a witness who offered the kinds of statements he has been making about his health in recent years. They might be called charitably incomplete; less charitable, deceptive, or deceptive.
There is no law that requires judges to make any disclosure about their health, although the issue is generally discussed in a closed session of the Senate Judiciary Committee before being confirmed.
Ginsburg certainly has every right not to talk about his health, but that is not the path he has chosen. It also doesn’t seem like their legions of fans would be satisfied with being armed about it.
Justice training sessions have become a central part of the “Notorious RBG” brand, with the liberal icon agreeing to have his workout routine videotaped for the documentary “RBG” and even doing some reps on camera. with comedian and talk show host Stephen Colbert for his “Late Show” in 2018.
Of course, as Ginsburg points out, his detractors also closely monitor his health. He likes to tell Senator Jim Bunning’s comments about her in 2009 when she was first diagnosed with pancreatic cancer. Bunning, a Kentucky Republican, said at the time that Ginsburg had “severe cancer, the kind that doesn’t get better.” He said he was probably less than a year old.
“There was a senator, I think it was after pancreatic cancer, who announced with great joy that he was going to die within six months,” Ginsburg said in an interview last July with Nina Totenberg of NPR. “That senator, whose name I have forgotten, is now dead and I am very much alive.”
Justice and Totenberg laughed at that joke. What Ginsburg did not mention in the interview was that a blood test that had been done earlier that month indicated that his cancer had come back. About a week after the interview, a malignant tumor was found in his pancreas.
The court would acknowledge that round of illness only after she completed three weeks of treatment at Sloan Kettering and after photographers saw her leaning heavily on a quarterback while in New York City.
There was a subtle sign last week that some in court may be seeking some distance from Ginsburg’s often misguided statements about his health. The statement the court released on Friday was described as coming directly from Ginsburg, rather than one on behalf of the court.
All of the other statements about Ginsburg’s health and the health of other judges published on the court’s website over the past decade were issued as court press releases. (One of the three statements the court issued in 2009 revealing its first diagnosis of pancreatic cancer was written in the first person.)
A court spokeswoman declined to explain why the most recent statement came directly from justice, and to discuss whether previous statements about her health were complete or sincere.
Time and again, news organizations have been complicit, albeit inadvertently, in creating a misleading picture of Ginsburg’s health.
After the court ceased public operations in March due to the coronavirus pandemic, Law360 reported that Ginsburg was continuing its training routine despite the dangers the virus poses to the elderly.
“The only reason I didn’t close justice is because, hey, she’s not having it,” Bryant Johnson, the former Ginsburg coach, told the legal outlet. Supreme Court spokeswoman Kathleen Arberg said a special “private space” had been reserved for her to exercise, even though the court’s employee gym was closed.
Some accounts echoing news about Ginsburg’s exercise regimen repeated his statement in January that he was “cancer free.”
Pandemic concerns also prompted the court to offer generic assurances on several occasions earlier this year that all members of its bank were in good health.
“Ginsburg, other ‘healthy’ judges as the United States Supreme Court adjusts to the coronavirus,” read the headline of a Reuters article on March 20.
While there is no sign that a judge has contracted the virus, Ginsburg has admitted that at the time she knew about liver cancer and was undergoing treatment for it.
While Ginsburg’s main health challenges have highlighted her, it’s hard to say whether she is more communicative or less communicative than other judges on the subject, because many of them basically say nothing about her health.
Scalia is unexpected The death in 2016 prompted a Supreme Court journalist, Tony Mauro of the National Law Journal, to investigate the health of each judge.
“I was struck by the fact that after Scalia’s death, we learned about all of her ailments after her death and I thought: why doesn’t this happen while they are alive?” Mauro said. “I sent individual letters to each judge, hoping that at least some would respond.”
They responded, but through a single three-sentence letter from the Chief Justice in September 2016.
“You can expect to see a capable and energetic court when we meet again in October,” wrote Roberts. “The Tribunal’s Public Information Office will continue to provide information when the need arises to inform the public.”
The response was noticeably scarcer than the interviews and responses the New York Times received when it sent a similar round of inquiries to judges in 1987, Mauro said.
Based on handling Roberts’ fall and head injury last month, it now appears that his cryptic promise means that even when a judge spends the night in hospital, “the need to inform the public cannot be seen.” Accidents and illnesses may not be recognized until and unless rumors about them start to spread.
Mauro said he suspected other judges might be following Roberts’ example by being taciturn about his medical condition.
“The boss has been very lonely when it comes to his own health,” said Mauro. “This may be overly simplistic, but I think the rest of the judges to some extent take the example of the boss.”
“It is the exceptionalism of the Supreme Court. The Supreme Court believes that revealing things like that is different from any other branch, ”added Mauro, who formally retired last year after four decades covering the superior court. “I think that is wrong. … I don’t think we have the right to know every little problem a judge has, but if it’s a significant problem that could affect his ability to work, I think it’s relevant. “
