On the Health of Supreme Court Justices

Written by Robert Justin Lipkin on August 3rd, 2007

I wish the Chief Justice the best of health. I have some friends with seizure conditions, and I know that it does make their life more difficult –in part because they cannot drive and in part because others know so little that they don’t know what to do and are afraid a seizure will happen “in front of their very eyes.”

I believe that the question of “what we know”–and “what we should have known” (about the earlier seizure)–are crucial matters which deserve more airing. The treatment in the NYTimes piece, which includes information about our non-knowledge with respect to the “health issues” of Rehnquist, Marshall, and Blackmun, is a start–but only a start.

While we may learn more about a president’s health than we may need to know (and one could sympathize with Ike’s distress when his intestinal activity was reported), and while it may be crucial to learn about the president because that is one person, certainly it is important to know about the health of the members of the Supreme Court when a body like that has only nine members, and certainly, the amount of attention given to confirming a Supreme Court justice (and particularly, but not only, the CJ) would suggest the position is sufficiently important that we ought to be provided far more health information. When the numbers in a policy-making body are larger than nine, e.g., the Senate or House, we learn little, although we were told a fair amount about the condition of an ailing senator, at least initially, but likely was only because the Democratic majority in the Senate was so narrow.

I venture the thought that the media have not been sufficient assertive/aggressive in seeking out medical information about justices, but it will not be easy to break down the “culture” that allows media deference when justices evade media questions about health and that allows the justices to brush off the few questions that are asked.

One reason that I believe it important to know “past history” is that it allows us to evaluate present incidents, about which we learn willy-nilly. For example, a seizure today, if it is the sole event in the person’s history, means one thing, but put together with another 14 years ago, it might mean another. And certainly if we did not know of the earlier one and there is a subsequent one two years down the road, our evaluation would differ from having “three points” on which to base our judgments. In this regard, I would add that the NYTimes article has a reference to only one of many episodes in which Thurgood Marshall was ill. Had someone written an article “putting them all together,” questions might have been raised about whether he should continue to serve rather than, as he asserted, stay until he went out feet first. Here, I suspect that many did not push the matter out of fear of being seen as criticizing a liberal icon and thus giving “aid and comfort” to the enemy. Yet we should not have to risk a recurrence of the sad state of affairs when Justice Douglas, after his stroke, would not leave the Court.

I hasten to add that I acknowledge the difficulty of making judgments as to when a certain condition is a disqualifier (for appointment) or the basis for calls that someone step down from office. However, that difficulty notwithstanding, I believe that we need to know more not less, so that we can make our own judgments, however “intelligent” or not they might be.


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