Despite a small stumble as she climbed up to take her seat on the supreme court bench on Monday, there was no clue that 81-year-old justice Ruth Bader Ginsburg had undergone heart surgery barely five days previously.
But the return of one of the court’s most stalwart liberals from hospital this week has underlined just how significant she sees her continued good health in the face of Republican threats to replace her with another, more conservative, justice.
Ginsburg has been characteristically blunt about her own predicament, telling interviewers recently that she feels unable to step down, since to do so would leave President Obama with the impossible task of filling the vacancy with a suitable replacement.
“If I resign any time this year, he could not successfully appoint anyone I would like to see in the court,” the 21-year supreme court veteran told Elle magazine in September. “Anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” she added.
Back then, the difficulty in confirming any future presidential nominee to the court lay in persuading five Republican senators to join a narrow majority of Democrats in reaching the 60-vote threshold needed to avoid a filibuster.
But the subsequent defeat of Senate Democrats in November’s midterm elections now means the White House would have to win over 15 Republicans, and possibly the new Senate majority leader, Mitch McConnell, too, before standing a chance of confirming any new appointments to the court during Obama’s last two years in office – all but guaranteeing that a more conservative pick would be necessary were Ginsburg to step down.
This stark political reality was on display sooner than expected last week, when the court announced that she had undergone an “coronary catheterisation procedure” to place a stent in her right coronary artery.
“The coronary blockage was discovered after Justice Ginsburg experienced discomfort during routine exercise last night and was taken to hospital,” said a statement issued by the court on Wednesday. “She is resting comfortably and is expected to be discharged in the next 48 hours.”
The medical procedure is a relatively routine one, but Ginsburg was clearly keen to demonstrate her ability to bounce back, letting it be known almost immediately that she would be back in court when it resumed oral arguments on Monday.
The first case saw her plunging straight into legal sparring with lawyers for the Mortgage Bankers Association with obvious gusto, and her critical interventions in a subsequent hearing about free speech limits in the digital age confirmed she retains one of the sharpest legal minds in America.
But Ginsburg has also been publicly clear that she will know when to call it a day.
“I will do this job as long as I can do it full steam,” she told Katie Couric in an interview for Yahoo News in July. “When I feel myself slipping, when I can no longer think as sharply, write as quickly: that will be the time for me to leave the court.”
Until then, Ginsburg’s vital role in helping balance out the narrow conservative majority on the bench has made her a hero on the left, particularly during recent high-profile cases involving women’s rights.
A notoriously blistering dissent in June against the decision by male justices to allow Hobby Lobby to refuse birth control coverage as part of employees’ healthcare, which she said would “deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage” helped cement this reputation and earn Ginsburg the rap-inspired sobriquet “notorious RBG” among internet fans.
It is not unusual for supreme court justices, who are appointed for life, to continue well into their 80s.
Ginsburg says she looks to former Justice Louis Brandeis, who retired aged 83, for inspiration, and hopes to say just as long.
There are also others on the bench – Antonin Scalia and Anthony Kennedy at 78, and Stephen Breyer aged 76 – nearing possible retirement age, who could also force a difficult nomination for Obama.
More significantly, the ageing bench is likely to give the next president an unprecedented chance to reset the balance of the supreme court in his or her image – a factor some commentators believe will be a major issue in the 2016 election campaign.
In the meantime, respect for Ginsburg’s physical and legal fortitude continues to grow at both ends of the political spectrum.
“Justice Ginsburg has more than earned the right to dictate when she retires from the bench,” Stephen Dillard, an appeal court judge in Georgia, said after launching to her defence on Twitter on Monday. “Her dedication to public service is inspiring.”.
