Ginsburg illness casts spotlight on long-term court absences

By Mark Sherman / Associated Press

WASHINGTON — Justice Ruth Bader Ginsburg has missed a month of Supreme Court arguments as she recovers from lung cancer surgery. But she’s not the first justice to be away for a while and her absence hardly compares with those of some of her predecessors.

The day before the Supreme Court began its term in October 1949, Justice William Douglas broke 14 ribs and suffered a punctured lung when he was thrown from his horse on a trail in the Cascade Mountains in Washington. He didn’t return to the bench for nearly a half year, and his long recovery caused delays in several cases, including challenges to segregation.

Like much of what goes on away from public view at the Supreme Court, how the justices deal with a colleague’s absence can be opaque. The individual justice decides whether to rule on cases even if she has missed arguments. Indeed, Chief Justice John Roberts already has announced that Ginsburg is participating in the cases she missed.

And only the justice can decide when an injury or illness is so severe that retirement is the only option. A quarter century after his riding accident, Douglas suffered a serious stroke, but refused to retire for months. His weakened state caused a backlog in the court’s work and the other justices refused to issues decisions in cases where Douglas had provided the fifth, majority-making vote.

“There aren’t any rules about this and so much is left to the individual justice,” said Erwin Chemerinsky, who argued a case during Ginsburg’s absence.

The 85-year-old Ginsburg could be back on the bench when the court next meets on Tuesday, and even as she has been away, she has not missed any votes.

In some state court systems, including California, the highest court can essentially borrow a judge from a lower court to temporarily replace an absent member, said Chemerinsky, the dean of the law school at the University of California, Berkeley.

The Supreme Court has no similar arrangement. The nine justices are there for as long as they wish, and neither a retired justice nor an appellate judge can fill a void.

The 25th Amendment to the Constitution sets out what happens if a president is incapacitated, but refuses to relinquish power. In Congress, the absence of a single lawmaker is not likely to make a lasting difference, while the absence of a single justice on the nine-member court can be significant. Also, elected officials have terms of office that last six years at most, in the case of senators.

The most recent example of a justice missing substantial time was in 2004 and 2005, when Chief Justice William Rehnquist was suffering from thyroid cancer and was not on the bench for 44 arguments over five months. Justice John Paul Stevens, the longest-serving justice at the time, presided when Rehnquist was away, except for the day in late February 2005 when Stevens’ flight from Florida was canceled and Justice Sandra Day O’Connor ran the show.

Still, Rehnquist voted in most of the cases for which he did not attend the arguments. He returned to the court in late March and made it through the end of the court’s term in late June before dying on Sept. 3 at the age of 80.

Douglas’ accident occurred in steep terrain more than a mile above sea level, just after he stopped to adjust the girth on his horse’s saddle. He fell an estimated 50 feet down a rocky hillside where his boyhood friend and riding partner, Elon Gilbert, found him lying on a ledge, according to The Associated Press’ report from the time.

Douglas, then 50, was a noted outdoorsman who hiked and rode extensively. While he recuperated, he was photographed in his hospital bed and then astride a horse when he took his first ride after the accident.

There’s a suggestion in news accounts that the other justices were irritated by the length of his absence. He came back to the court in time to hear Thurgood Marshall argue that Texas’ refusal to accommodate a black student in its whites-only law school was unconstitutional. Marshall, then the nation’s most prominent civil rights lawyer, prevailed in a unanimous decision.

Douglas already had become the court’s longest-serving justice by the time of his stroke on the last day of 1974. Though unable to walk and generally weakened by the stroke, Douglas refused to retire. Because of his illness, the court ordered a new round of arguments in eight cases in the spring of 1975, an unusually large number.

“They agreed to take away his vote because they thought he was incompetent,” historian David Garrow said.

When the new term began that October, Douglas was still on the court. At arguments, Douglas “had moments of lucidity and energy followed by near incoherence and sleep,” authors Bob Woodward and Scott Armstrong wrote in “The Brethren,” their book about the court.

By November, Douglas had had enough and reluctantly submitted his resignation after more than 36 years as a justice.