Federal Judiciary

Call Off The RBG Retirement Watch, Before It Starts

By Akin Gump Supreme Court Practice Group

Today?s news that Justice Ginsburg has undergone surgery for pancreatic cancer is obviously serious. It is a bad disease.

But this story is likely to be blown dramatically out of proportion for several reasons. The average five-year survival rate for this disease is very low. Justice Ginsburg is ? compared to the general population ? relatively elderly. She had a previous bout of cancer. And the arrival of a new Administration ties in with speculation about new appointments.

But those points have very little to do with the reality of what this means for Justice Ginsburg and the Court. Average survival rates for pancreatic cancer are skewed dramatically by the nature of the disease, which is reasonably asymptomatic in its early and middle stages. If you have it, you generally don?t know it.

But here, Justice Ginsburg got ? and this is an odd phrase to use here ? very, very lucky. As the statement released by the Court says ? and I expect that it was quite pointed in doing so ? this cancer was apparently discovered early in a routine exam ? routine, that is, for someone who has very good medical care. Someone else might never have such an exam and as a consequence not find out about this cancer until it was essentially too late.

But in the relatively rarer case in which you do identify pancreatic cancer in time, and successfully remove it by surgery, the odds of recovery are vastly higher. What the public does not know ? and I expect that the Justice herself may not know because the surgery was only today ? is whether the intervention occurred before the cancer spread.

Though it?s an unknown, I do think there is real cause for optimism. The size of the tumor suggests that the cancer was caught very early. The statement released by the Court is relatively open ? more so than is often the true with that institution. The degree of disclosure reflects a personal choice by the Justice herself, and it reflects her attitude towards the public. If her doctors had found the cancer had spread before the surgery, which surely they tried to do, I don?t think she would have released a statement saying that it was found ?early.?

It?s also essential not to let the Justice?s earlier bout with cancer cloud our sense of this surgery. The two don?t have anything to do with each other. Her earlier cancer ? as a result of which she did not miss a day of Court ? was cured and did not cause this.

The Justice?s age may slow her recovery. That?s natural. But this is an individual of surpassing toughness. She has been through cancer before. Her family has been through it and knows how to support her. To be honest, Justice Ginsburg can be mistaken as looking a bit frail, but it really is a mistake to have that impression. Certainly, if this hadn?t happened, Justice Ginsburg would have been expected to serve for several more years.

Could this nonetheless cause her to retire if she is going to recover? I would be absolutely shocked. The Justice?s reaction to her previous cancer was, as she explained at the time, to treasure all of life, including her public service to the country. She recently sent word through her former clerks that she likes Justice Stevens?s model of serving well into his 80s. This is not the kind of event that will change her resolve.

I don?t actually expect this post to change the inevitable parlor game (which I play perhaps as much as anyone) of speculating about retirements. But this is serious business because the speculation is really about whether a significant public servant is going to live or die. So it ought not be done lightly. What we know now is that ? through good medical care and lucky timing ? the news is as good as it could be.

When there is more news, we are extremely likely to find out. When the Justice previously had cancer she relatively quickly released a statement (around ten days after treatment) providing an extremely detailed explanation of her condition. As I indicated above, it would be in her nature to do the same thing here when she knows more.

Full post as published by SCOTUSBLOG on February 05, 2009 (boomark / email).