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High Court Has No Rules Governing Health

By MARK SHERMAN
The Associated Press
Tuesday, July 31, 2007; 5:10 PM

WASHINGTON -- Two Supreme Court justices have had cancer. Another has a stent to keep an artery open. Now the chief justice has suffered his second unexplained seizure in 14 years.

Like society at large, the court lives with health issues large and small, letting the justices themselves decide whether and how to continue their work. In an institution that zealously guards the justices' privacy, how much to tell the public also gets decided on a case by case basis.

"There is quite a long history of illnesses, especially among older members of the court over the years and no formal structure for dealing with it," said A.E. Dick Howard, a Supreme Court expert at the University of Virginia.

Chief Justice John Roberts strode out of a Maine hospital Tuesday, looking well and waving to onlookers less than 24 hours after a seizure interrupted his summer vacation. He had a similar episode in 1993.

There are no indications he will have trouble resuming his work duties, and doctors said that most people who have seizures return to work with no ill effect, although they sometimes need medication.

At 52, Roberts is not only the youngest of the nine justices but is the youngest chief justice in 200 years. He is an incisive questioner during the court's argument sessions. He has two young children, ages 6 and 7.

That Roberts should now be the focus of health concerns is ironic, given the ages and medical histories of his colleagues.

To Roberts' right on the bench sits John Paul Stevens, the court's oldest member at 87 years of age. Stevens was diagnosed with prostate cancer in the early 1990s, but remains a sharp questioner and avid tennis player with no plans to retire. He served as a clerk at the court before Roberts was born.

To Stevens' right is Anthony Kennedy, 71. He had a stent inserted in November 2005 to keep an artery open. The stent was replaced last year after Kennedy suffered mild chest pain, but he didn't miss any time on the bench.

Justice Ruth Bader Ginsburg, 74, had a cancerous growth removed from her colon in September 1999. Seventeen days later, she was on the bench when the court began its new term on the first Monday in October.

In recent years, the late Chief Justice William Rehnquist also stayed on the court during his battle with thyroid cancer. Rehnquist was absent from public sessions for five months in late 2004 and early 2005, but he continued to participate in decisions and returned to the bench for the end of the term.

He presided at the term's final session, when many people believed he would announce his retirement. He did not, but he died two months later at age 80 before the start of the next term. Roberts soon was confirmed as his successor.

The disclosure of Roberts' seizure also called attention to a thorny issue at the court _ protecting the justices' privacy and especially news about their health. By practice, justices typically approve the release of any information about their health.

Local news outlets in Maine might have forced the court's hand in releasing information because they picked up first word that something had happened to Roberts through police and fire scanners.

The court issued an initial statement around 3:15 p.m. EDT, little more than an hour after the incident. It said only that Roberts had fallen and was taken to a hospital.

With national news sources now following the story closely, the court confirmed at 6:45 p.m. EDT that he had suffered a seizure. But the court provided no details of what tests Roberts underwent or whether he has been prescribed medication.

Rehnquist also withheld details when he was hospitalized in 1981. At the time, a hospital spokesman said Rehnquist experienced a "disturbance in mental clarity" after he abruptly stopped taking a powerful sleeping aid for his chronic back pain.

Rehnquist's FBI file, released in January, reported that his withdrawal symptoms included going to the hospital lobby in his pajamas in a bid to escape. He imagined that there was a Central Intelligence Agency plot against him, and he also seemed to discern changes in the patterns on the hospital curtains.

Rehnquist thought he heard voices outside his room discussing various plots against him.

Prior to the hospital stay, Rehnquist experienced slurred speech, possibly from long-standing reliance on the drug. The problem never recurred after Rehnquist returned to the court early in 1982.

More recently, Kennedy said nothing publicly when he had the stent inserted. The procedure took place with the court in a state of flux, two months after Rehnquist's death and with Justice Sandra Day O'Connor's retirement pending.

Ten months later, with Roberts and Justice Samuel Alito on the court, Kennedy acknowledged the stent when he had to have it replaced.

The clearest example of a justice's declining health affecting the workings of the court is William O. Douglas. "Most justices of that era did step down when they were seriously ill or incapacitated. Not Douglas," Howard said.

The longest-serving justice, Douglas had a serious stroke on Dec. 31, 1974, but insisted he was still able to do the job, telling fellow justices, friends and reporters that he was giving no thought to retirement.

Douglas' colleagues, however, believed otherwise. They dragged out their deliberations in cases in which Douglas was the decisive vote.

Finally, 10 months later, unable to make it through open court sessions and private conferences, Douglas quit.

© 2007 The Associated Press