This is such an uncomfortable question that I honestly hesitated to even discuss it, but since Josh Gerstein brought it up at Politico, it would appear that the question is now fair game. As you likely heard, Supreme Court Associate Justice Ruth Bader Ginsburg spent a night in the hospital back in May, sending liberals around the nation into a panic. But their fears were quickly assuaged when her spokesperson announced that she was receiving non-surgical treatment for a gallstone and it wouldn’t impact her duties on the court.
Now we know that the report that was issued was, at a minimum, a tremendous case of obscuring the facts. Whether she had a gallstone or not, her cancer had returned and she was undergoing another round of treatment for it. Josh Gerstein asks whether this is the sort of transparency (or lack thereof) that Americans deserve when it comes to such an important position.
The five-month delay that preceded Ginsburg’s statement Friday was just the latest episode to prompt concern among courtwatchers that the justices are being too opaque about their health…
Critics say the public is entitled to more information about the justices‘ medical condition. With the court sharply divided on many pivotal issues, an unexpected health crisis on the part of one justice has the potential to upend official Washington. But the fact the justices enjoy life tenure and have little in the way of oversight to monitor their competence also makes questions about their health more urgent than for other public officials.
“On the one hand, Ginsburg is to be commended for the statement [ on Friday,] but from what she said … it seems we should have had a statement several months ago,” said David Garrow, a renowned legal writer and historian of the civil rights movement.
This is a considerably lengthy article and Gerstein goes on to discuss the “decrepitude” on the Supreme Court and the outsized influence and power wielded by people who are frequently in their 80s. He also discusses the lack of honesty on Ginsberg’s part, arguing that keeping silent about her health is certainly her right, but she went beyond that. She released several statements since first learning of her lastest cancer diagnosis indicating her health was just fine. Rather than telling people to mind their own business, she chose to lie about it. And that, in the author’s opinion, undermines the public’s trust in her high office.
As I said at the top, this subject is a very touchy one. While I will concede that the idea of a Supreme Court Justice lying to the public is disappointing, this is one of those subjects where I would question the public’s right to know such very private and distressing details. Questions about the heath of public officials are certainly fair game when they are running for office or being considered for an appointment. While not mandatory, most candidates for high office disclose their medical records, and that’s appropriate because we’d like to know if the person we’re voting for has a reasonable chance of living long enough to do the job. Supreme Court nominees are routinely asked about their health during closed Senate committee hearings as part of the confirmation process.
But once somebody is in office or on the bench, those questions should pretty much go out the window, shouldn’t they? We don’t impeach public officials for becoming ill. And particularly in the case of Supreme Court justices who are appointed for as long as they wish to remain on the bench, the odds are that they’re going to run into health problems eventually. One study conducted in 2010 found that nearly half of all Supreme Court justices died in office and a significant portion of the others announced their retirement as being related to health problems, with many of them not living very long after departing.
When you give people an office “for life,” that’s just the nature of the beast, I’m afraid. You can’t force any of them to retire, so this argument seems rather pointless. Perhaps it would have been better if Ginsburg had chosen to say nothing rather than deceiving the public, but does that really have any impact on her ability to do the job? If any of the justices began showing signs of serious mental deterioration, I suppose it would be within reason to begin discussing their removal from office, but even then it would be an ugly situation to behold. And if it’s a health problem like cancer or any other malady not impairing their mental faculties, I hope we’re not the sort of a country that would boot them off the bench because they were sick.