Federal Courts and Nominations

Ginsburg’s Cancer Surgery Reminds Liberals of Supreme Court’s Fragility

  • Prognosis seen as good for 85-year-old Supreme Court liberal
  • Any departure could let Trump fill third high court vacancy

Justice Ruth Bader Ginsburg’s latest health scare gave liberals renewed cause to worry and conservatives a chance to envision that President Donald Trump might eventually make a third nomination to an already conservative U.S. Supreme Court.

The 85-year-old jurist underwent lung surgery Friday to remove two cancerous growths. Although doctors found no evidence of any remaining disease, the episode was a reminder of how quickly a health issue can change the court’s composition.

Liberals are already bracing for the impact of Justice Brett Kavanaugh, who on Friday joined three conservative colleagues in voting unsuccessfully to let Trump start barring asylum bids by people who enter the country illegally from Mexico. Chief Justice John Roberts joined the court’s four Democratic appointees to keep the policy from taking effect.

A departure by Ginsburg — or 80-year-old Justice Stephen Breyer — could shift the court even further, potentially putting five justices to the right of the Republican-appointed Roberts. That could be a crucial change on such issues as abortion, gay rights, gun control and Obamacare.

“The prospect of shifting the median vote away from the chief should be extremely concerning, particularly given the ongoing high stakes litigation that will eventually make its way to the court,” said Leah Litman, a constitutional law professor at the University of California, Irvine, School of Law.

The court’s announcement about Ginsburg’s surgery left some conservatives eagerly anticipating another vacancy. “Another Justice appointment inevitable and soon,” former Fox News host Bill O’Reilly said in a tweet. “Bad news for the left.”

Trump wished Ginsburg a “full and speedy recovery” on Twitter.

Cancer Survivor

Ginsburg is already a two-time cancer survivor, having beaten colon and pancreatic cancer. The latest occurrence was discovered incidentally during treatment for three ribs she broke in a fall on Nov. 7. The surgery, which involved the lower lobe of her left lung, was performed Friday at Memorial Sloan Kettering Cancer Center in New York.

Although the growths were malignant, no further treatment is planned, the court said in a statement on Friday. She is resting comfortably and is expected to remain in the hospital for a few days, according to the statement.

Ginsburg’s prognosis is probably good, according to doctors who aren’t involved in her case.

“The majority of patients at this stage of lung cancer are cured with this surgery,” said Stephen Liu, a lung cancer specialist at Georgetown Lombardi Comprehensive Cancer Center. “While there is a risk of recurrence, I would expect that she is cured of her cancer and will be back on her feet working relatively soon. Most are out of the hospital within a few days.”

Liu said Ginsburg’s recent fall had been a “blessing in disguise,” resulting in early-stage discovery of the nodules.

Recovered Well

Ginsburg is an iconic figure, earning the affectionate nickname “Notorious RBG.” She is known for her slight physical stature, rigorous workout routines and pointed opinions.

“Justice Ginsburg’s role on the court, both in terms of her actual jurisprudence and her status as a role model for many, cannot be overstated,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.

By all appearances, she had recovered well from the broken ribs. She was an energetic participant in six days of Supreme Court arguments in late November and early December, and appeared in public outside the court at least five times.

She went to the funeral for President George H.W. Bush early this month and attended multiple events connected to “On the Basis of Sex,” a movie based on her life that goes into wide release on Christmas Day.

“Ginsburg had the most aggressive surgery, which tells me she was an excellent candidate in very good health,” Liu said. “Those who are more frail might not be able to tolerate it.”

The Supreme Court is scheduled to hear its next arguments on Jan. 7. Ginsburg has never missed an argument, even while undergoing cancer treatment.

The asylum order dealt a blow to Trump on a signature issue, leaving in effect a lower court decision that temporarily bars him from imposing new restrictions. Trump’s disputed policy, designed to apply for 90 days, would effectively require all asylum claims to be made at official ports of entry.

Joining Kavanaugh in dissent were Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, Trump’s first Supreme Court appointee. Neither the dissenters nor the five majority justices made any comment.