Justice Ginsburg out sick with stomach bug

Chief Justice John Roberts announced today that Justice Ginsburg was out sick for today’s oral arguments:

The court said Ginsburg, 86, remained home because of a stomach bug. While not having the opportunity to question attorneys during the arguments, she will be involved in deciding the cases.

“Justice Ginsburg is unable to be present today. She is indisposed due to illness, but she will participate in the consideration and decision of the cases on the basis of the briefs and the transcripts or recordings of the oral arguments,” Chief Justice John Roberts said from the bench.

Josh Blackman apparently noticed she seemed to be moving more slowly than usual yesterday when she was present for oral arguments on DACA.

Steven Mazie who covers the Court for the Economist seems to have noticed the same thing:

Today she is missing arguments in a racial discrimination case against Comcast:

The case was brought by a black-owned production company run by former comedian Byron Allen. The company, Entertainment Studios, alleges that Comcast refused to carry its channels, including Cars.TV and Pets.TV, while offering contracts to lesser-known white-owned channels.

That runs afoul of the Civil Rights Act of 1866, Entertainment Studios argues. The post-Civil War law ensures that all Americans have the same right “to make and enforce contracts” regardless of race.

Entertainment Studios hasn’t proven that Comcast was motivated by Allen’s race, and Comcast, which owns CNBC parent NBCUniversal, denies it. Even if the Supreme Court allows Allen to pursue his discrimination claim, proving discrimination before the lower courts could be a high bar.

There’s some concern any time Ginsburg isn’t feeling well because she’s had multiple bouts with cancer including one just a few months ago:

Ginsburg, 86, is a four-time cancer survivor and has been an active participant on the bench this term. In August, she announced that she was being treated for pancreatic cancer. At the time, the Court’s public information officer said, “The tumor was treated definitively and there is no evidence of disease elsewhere in the body.”

In 1999, she successfully underwent surgery to treat colon cancer. She was treated for early stages of pancreatic cancer in 2009. Last December, Ginsburg underwent surgery to remove two cancerous nodules from her left lung.

Democrats get a bit jittery whenever Ginsuburg takes ill. She’s the leader of the court’s liberal wing and if she were to be replaced by President Trump, the court would likely swing to the right for the foreseeable future. And so you get people on social media saying things like this:

And this:

Lots of people on Twitter are offering whatever organs are needed:

Some suggested bubble wrap:


I’m only selecting replies with larger follower counts but there are dozens if not hundreds of people expressing similar sentiments.

In retrospect, it was probably a mistake that Ginsburg didn’t resign back in 2014 when she had the chance to do so under Obama. It’s clear she’s holding out now in hopes of another Democratic president, but even if she believes Trump will lose in 2020 that’s still 14 months away. And even then there’s no guarantee Democrats will control the Senate, meaning there would not be a left-wing replacement. Would she try to hold on another two years for the 2022 election?

Ginsburg has always been willing to look beyond politics in her personal interactions on the court. She was famously good friends with the late Justice Scalia and this summer she praised both Gorsuch and Kavanugh saying, “I can say that my two newest colleagues are very decent and very smart individuals.” So while I’m not a fan of her politics, in this case it’s easy to look beyond that and sincerely wish her a speedy recovery.