Will Ginsburg remain on the Supreme Court?

Will Ginsburg remain on the Supreme Court?

There's precedent for how justices deal with illness

[Read the full article at The Hill]

As Justice William Brennan aged, inevitable questions about his retirement grew more insistent. With his Irish wit still intact, he quipped about his intention to leave the court “feet first.” When news of Ruth Bader Ginsburg’s most recent cancer treatment garnered headlines, both her legions of fans and equally staunch opponents speculated on her plans to step down. Like Brennan, she indicated a determination to remain on the high court.

The Supreme Court’s modern history, from Franklin D. Roosevelt’s appointees onward, provides precedents for how justices have taken their leave.

Unexpected death

In the days before effective diagnosis and treatment of cardiovascular disease, a number of justices succumbed to it. Among FDR’s nine appointees, four died in service from coronaries or strokes: Frank Murphy, Wiley Rutledge, Robert Jackson and Harlan Stone. The latter was stricken while presiding over a public session of the court. Stone’s successor, Fred Vinson, died from a coronary thrombosis in 1953, prompting a snide aside from Justice Felix Frankfurter, “This is the first solid piece of evidence that … there is a God.” 

In recent years, only Antonin Scalia suffered a sudden death while on the court. His physician later revealed that the overweight justice had been diagnosed with heart and lung disease, high blood pressure, diabetes and sleep apnea.

Retirement in ill health

Frankfurter bowed out after a 1962 stroke and died three years later. Hugo Black and John Marshall Harlan II each capitulated to infirmities and stepped down from the bench in 1971. They died shortly thereafter. Determined to set the longevity record for service on the court, William Douglas did so by insisting that he stay even after a debilitating stroke forced him to use a wheelchair. Finally, he retired after 36 years as a member of the “priestly tribe.” 

Despite Brennan’s desire to die in his judicial robes, a 1990 stroke prompted his doctors to recommend retirement. He died in 1997, seven years after retirement, at age 91. One year after Brennan retired, Thurgood Marshall stepped down, owing to declining health, and died in 1993.

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