Supreme Court Justice Ruth Bader Ginsburg misses courtroom arguments due to illness

Ginsburg, 86, was not on the bench for oral arguments due to a stomach bug, according to the court.

Justice Ruth Bader Ginsburg is once again on the Supreme Court’s injured list. The 85-year-old jurist has suffered several health setbacks over the past few months, including a fall that fractured three ribs in November followed by surgery to remove two cancerous growths from her lung at the end of December. Depending on the final pathology results, which have not yet been publicly disclosed, Ginsburg’s already improbable medical history — including early-stage colon (1999) and pancreatic cancers (2009) — may now include lung cancer.

The still-recuperating Ginsburg even missed oral arguments this week, the first time she’s missed courtroom arguments in 25 years. Given the heightened political stakes of losing Ginsburg’s progressive vote while President Donald Trump is still in office, supporters quickly took to social media to offer her customary prayers and, if necessary, their own bodily organs.

If Justice Ruth Bader Ginsburg needs a new lung she can just take mine. All I want for Christmas is good health for RBG.

— Adam Best (@adamcbest) December 21, 2018

But Ginsburg’s health is also being inappropriately used to revive an old argument about Supreme Court term limits, which some commenters say could diminish the vagaries of health for greying judges promised lifetime tenure.

However well-intentioned, the recent efforts of Congress and legal critics to institute mandatory medical examinations and retirement ages for the federal judiciary are misguided. Certainly, Americans do not want judges (or politicians for that matter) to continue to serve the public if their physical or cognitive health is compromised. However, adopting the black-and-white approaches that are not rooted in evidence-based medicine would set a dangerous national precedent.

Justice Ginsburg misses Supreme Court oral arguments for first time

JAN. 7, 201901:54

A recent analysis in The New York Times looked at how longer American life spans coupled with advances in medicine and public health have shaped the Supreme Court’s bench. These factors have resulted in a “shift toward a longer and slower decline, as opposed to more rapid death” because chronic illnesses have supplanted infectious diseases as the chief causes of death.

In short, the nation’s highest adjudicators are living and serving longer than ever before. According to the same Times analysis, on average, judges confirmed before 1800 lived to 67, but those confirmed between 1975 and the turn of the century have a life span of over 82 years.

The data clearly predicts an increasingly geriatric Supreme Court that is naturally vulnerable to some of the most brutal manifestations of old age. Indeed, after Justice William O. Douglas suffered an incapacitating stroke in 1974, it took his colleagues 11 months to persuade him to retire. Years later, Chief Justice William H. Rehnquist rebuffed calls to retire despite being diagnosed in 2004 with an aggressive form of thyroid cancer that left him infirm.