“The whole question of age and health of Supreme Court justices is a bit in the eye of the beholder,” said Nina Totenberg, award-winning legal affairs correspondent for National Public Radio (NPR), who delivered the Martin Memorial Lecture, The Health of the Supreme Court, Monday morning, October 28, at Clinical Congress 2019. It takes most justices three to five years to get comfortable in the role, “and then there’s the matter of wisdom, which often does come with age,” she said. “There’s a reason most justices are appointed in their 50s—young enough to last, but old enough to have had some breadth of professional and, hopefully, human experience, as well.”
Ms. Totenberg recently conducted a wide-ranging interview with Supreme Court Justice Ruth Bader Ginsburg, whom she has known professionally for many years and with whom she has a friendship. In fact, Justice Ginsburg received medical advice from Ms. Totenberg’s husband, Past-Governor of the American College of Surgeons (ACS) H. David Reines, MD, FACS, a trauma surgeon and vice-chairman of surgery at Inova Fairfax Hospital, VA, after she broke three ribs, which led to the successful diagnosis and treatment of the justice’s lung cancer.
Cancer has been a presence throughout Justice Ginsburg’s life. Her mother died of cancer just as the future justice was about to graduate valedictorian from high school, Ms. Totenberg said. Justice Ginsburg’s husband developed testicular cancer early in their marriage, and the justice has been treated for colon cancer, pancreatic cancer, and lung cancer.
Like many justices before her, Justice Ginsburg told Ms. Totenberg in that interview, “I knew I had to get past the aches and pains, do the briefs, write the opinions, do the work.”
Justice Ginsburg said in the interview that “two things are essential to a good doctor-patient relationship: one is candor and the other is compassion.” She advised “giving it to the patient straight” and being honest about the diagnosis and prognosis, while also “being at the patient’s side, on her side.”
Historically, Supreme Court justices have sought to keep their health status out of the spotlight. For example, few people were aware that Chief Justice William Rehnquist had thyroid cancer until he underwent a tracheostomy, Ms. Totenberg said. Soon after, however, “it became increasingly clear that Justice Rehnquist was desperately ill. Although he continued to do his work, most of us who covered the court assumed he would retire at the end of term, but he did not, dying during the summer break,” she said.
“Thirty years ago, the Supreme Court justices were even more private,” Ms. Totenberg said. For example, when Justice William O. Douglas suffered a severe stroke, he continued to attend oral arguments and to vote, “even though his mental judgment, I understand, was at times not great, and he was in terrible pain and paralyzed.”
Not every serious illness portends the end of a Supreme Court career, Ms. Totenberg said. “Justice John Paul Stevens, for instance, underwent radiation treatment for prostate cancer in 1982 and went on to serve another 18 years before retiring at age 90,” she noted. In 1988, Justice Sandra Day O’Connor wore a wig and looked gaunt for much of the term as she underwent chemotherapy for breast cancer. She never missed a day on the bench, and she served 18 more years before stepping down in 2006.
When Justice Ginsburg was diagnosed with colon cancer in 1999, she sought Justice O’Connor’s counsel. “The advice: Schedule your chemo for Fridays so that you have the weekend to recover, and you can be back in fighting form by Monday. Ginsburg was more effective than O’Connor in hiding the effects of chemo and radiation,” possibly because she didn’t lose her hair, Ms. Totenberg said. “But Justice Ginsburg’s tiny hands and arms are marked by dark needle marks from the treatments, and that’s why whenever you see her in public, she dresses up and wears the most exquisite and elegant fishnet or sometimes crocheted gloves.”
While acknowledging that “some justices have undoubtedly stayed on past their prime,” Ms. Totenberg said others have written some of their most famous opinions late in their careers. Justice Hugo Black suffered memory lapses late in his career. Nonetheless, he wrote an opinion heralding the free press late in life.
“Chief Justice John Marshall, indisputably the greatest chief justice in the nation’s history, broke his collarbone while riding to Washington from his home in Richmond in 1812. Twenty-three years later, in 1835, his spine was crushed on a trip from the Supreme Court back to Richmond when the carriage in which he was riding overturned on the ice,” Ms. Totenberg noted. “He died later that year at age 79 after serving as chief justice for 34 years and establishing some of the foundational decisions the court still uses today.
“The oldest sitting justice was also one of the greatest,” Ms. Totenberg continued. “Oliver Wendell Holmes was just shy of 91 when he retired in 1932. A decade earlier, when William Howard Taft became chief justice, he thought that Holmes should retire. But after a few years serving with Holmes, he changed his mind, impressed by the vigor and vitality of Holmes’ work.”
After the Martin Memorial Lecture, Ms. Totenberg participated in a meet-and-greet event. See caption above for a summary of the event.