Fervid speculation as to Justice Ruth Bader Ginsburg’s well-being was set off in December when the Supreme Court abruptly announced that she was being treated for lung cancer.
Though a positive prognosis has since allayed the worst fears of Ginsburg’s admirers, her continued struggles broach important but little-discussed questions about judicial fitness in an era when unprecedented longevity often entails sudden declines in mental and physical faculties.
Those questions are hardly theoretical: The modern history of the Supreme Court is replete with examples of real or perceived incapacity among the justices, who alone decide when to leave active service.
Ginsburg had two cancerous nodules removed from her lungs at the Sloan Kettering Memorial Cancer Center in December 2018, in a procedure called a pulmonary lobectomy. The cancerous growths were discovered when Ginsburg was hospitalized for rib fractures resulting from a fall in her chambers at the high court.
Doctors have since pronounced Ginsburg in excellent health, telling reporters there are no indications of remaining disease following her December surgery. The justice was reportedly seen for the first time since the procedure at the National Museum of Women in the Arts in Washington on Feb. 4 for an event honoring her life and professional accomplishments. She may return to the bench as soon as Feb. 19, when the Court will hear a new round of cases.
Incapacity can take many forms, which are not triggered by physical disease or advanced age, as has occurred with Ginsburg. Such was the case of Justice Charles Whittaker, the 56-year-old Kansan that President Dwight Eisenhower elevated to the high court in 1957, whose travails were thoroughly documented in Professor David Garrow’s 2000 article in the University of Chicago Law Review “Mental Decrepitude on the U.S. Supreme Court”.
Whittaker suffered from intense bouts of depression and anxiety, and the attendant strain seriously impeded his professional abilities. The high court’s tremendous workload immediately triggered those complexes. His colleague, Justice Harold Burton, observed that Whittaker very nearly suffered a nervous breakdown just 10 weeks after taking the bench.
Whittaker’s deterioration continued in fits and starts in the years that followed, according to Garrow’s research. A worsening crisis climaxed in February 1962 as the Court contemplated a landmark gerrymandering case, Baker v. Carr. Amid the mounting pressure of those deliberations, the justice retreated to the seclusion of a Wisconsin cabin.
Whittaker returned to the capital three weeks later, distraught and considering suicide. He was admitted to Walter Reed Hospital on March 6. Chief Justice Earl Warren and a panel of doctors entreated Whittaker to retire, which he did on March 28, having served two months as a justice despite total psychiatric collapse.
He left judicial service a diminished figure, having managed just eight majority opinions in his five years as a justice, a trifling figure for a prodigious court.
A similar, if less frightening, incident arose in 1981, when Justice William Rehnquist appeared impaired during oral arguments throughout the fall and winter. The justice frequently slurred his speech and struggled to summon certain words, creating the impression of serious impairment.
Rehnquist’s condition was a function of his ongoing addiction to Placidyl, a powerful sleeping agent he took to alleviate acute back pain. Though Placidyl is usually proscribed over limited time spans, Rehnquist used the drug for a decade, often in significant excess of proscribed amounts. He was voluntarily admitted to George Washington University Hospital on Dec. 27, 1981 to undergo detoxification.
Though the hospitalization appeared in contemporary press accounts, the full extent of the experience was not fully understood until the FBI released its confidential files on Rehnquist after his death in 2005, which The Washington Post obtained and summarized in 2007.
Hospital personnel later told the FBI that Rehnquist suffered from hallucinations and paranoid delusions as withdrawal became acute. Among the fantasies the Post describes was Rehnquist’s unfounded fear that the CIA was plotting against him. On a separate occasion, he attempted an escape, appearing in a hospital lobby in pajamas.
Once the detoxification was complete, the attending physicians said the justice could return to the Court at full function. The issue was not broached when he was elevated to the chief justiceship in 1986. There is no evidence that the experience ever affected Rehnquist’s work on the high court.
https://www.dailycaller.com/2019/02/12/supreme-court-ginsburg-incapacity/