Impact of Ginsburg's absence on court is uncertain

With justice recuperating, some votes could end in tie

September 28, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- For the first time in six years, Justice Ruth Bader Ginsburg was not at her place in the Supreme Court's private conference room yesterday when the justices returned to work after their summer recess. She remained hospitalized, recuperating from cancer surgery.

Lyle Denniston of The Sun's national staff examines what her absence may mean to the court.

Q. What is known about her illness and her prospects?

A. Ten days ago, the 66-year-old justice was operated on for colon cancer at Washington Hospital Center. The cancer had been diagnosed earlier that week, although Ginsburg had started feeling ill in July.

Ginsburg's family and her doctors have released no details of the diagnosis, the scope of the surgery or the outlook for her recovery. The surgeon who performed the operation would not estimate a date for her return to work, although on the day of the surgery he estimated that the time of hospitalization would be "approximately one week." The court has since said that Ginsburg is "on track" for recovery, without complications.

Q. If she is released from the hospital this week, will she be able to return to work immediately?

A. That is doubtful. The court formally opens its new term Monday.

Q. What did Ginsburg miss yesterday?

A. The justices met to discuss new cases they will be hearing after the new term opens. The court is likely to announce this morning what cases it has chosen. It will then become clear whether she took any part in that gathering, by telephone or message. Her law clerks and staff were at work yesterday, able to keep in touch with her.

Q. Has she done any of her judicial work since the surgery?

A. Yes. The extent of her participation, and how she did it, are not known. But she did cast votes last week on several pleas by death-row inmates to prevent their executions. One such vote was a dissent from the court's refusal to delay one inmate's execution.

Q. Will Ginsburg's absence have more impact once the court begins holding hearings on pending cases Monday?

A. Maybe. The court needs only six of the nine justices on the bench for hearings, so it can proceed without her if she does not return promptly. But Ginsburg is one of the most active justices in questioning lawyers at hearings, so that quality would be missing. Her questions often bring out related issues that other justices bypass.

Depending upon Ginsburg's condition, she could choose to take part in the decisions that result from those hearings. She can read transcripts or listen to tape recordings, and she will receive drafts of opinions other justices prepare. The process of opinion-drafting, though, will not go very far until several weeks from now.

Q. The court often splits 5-4 on major issues. How might Ginsburg's absence affect that situation?

A. If all nine justices take part in a ruling, at least five must agree on a result, though not necessarily on the reasoning. If only eight justices take part, there is a chance of a 4-4 split. If that happens, no opinion is issued, no precedent is set and the case is left as the lower court decided it. It is something of a waste of time.

Q. If Ginsburg does not take part for a while, are 4-4 splits likely this term?

A. Possibly. For a case that the court thinks is very important and thinks needs an answer, the justices are likely to hold off until a full court, with Ginsburg, can take part rather than end it with a 4-4 split. It has done that before. But on the issues that produce the most controversy -- for example, on matters involving race -- Ginsburg is usually among four dissenters with a conservative majority of five in control, so her absence would not change the outcome in those areas.

Now and then, the court might be willing to dispose of a case with a 4-4 split, if Ginsburg is out of the lineup, especially if it is having trouble with the ruling and would welcome the chance to take a pass. The issue can return later.

Q. Is anyone talking about replacing Ginsburg?

A. Apparently no one who is in a position in government to start choosing a possible successor. The White House and Justice Department always have a list of potential nominees, but they say it is premature to go beyond that now.

Pub Date: 9/28/99

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