By Robert Barnes
Washington Post Staff Writer
Tuesday, February 24, 2009
Justice Ruth Bader Ginsburg returned to the Supreme Court bench yesterday with a wide smile and a long list of questions for the lawyers appearing before her, resuming her duties less than three weeks after surgery for pancreatic cancer.
Ginsburg, who will turn 76 next month, smiled broadly as she walked into the courtroom with her eight male colleagues and turned slightly to look directly at reporters who chronicled her Feb. 5 surgery and diagnosis of early-stage cancer.
She was a vigorous participant in yesterday's two oral arguments, and even teased veteran Supreme Court practitioner Carter Phillips about whether an opinion she wrote in 2003 had misstated the justices' intentions.
"Do you think that was just carelessness on the court's part?" Ginsburg asked.
"Oh I would -- I would never assume that, Justice Ginsburg," Phillips replied.
Ginsburg's return coincided with the end of the court's midterm break. The justices announced they have granted six new cases, probably to be heard in the term that starts next October, including a dispute between Congress and the courts about a cross that has stood for more than 70 years on a prominent peak in the Mojave National Preserve in California.
Ginsburg underwent surgery at the Memorial Sloan-Kettering Cancer Center in New York after a January CT scan revealed a one-centimeter lesion in her pancreas. That tumor turned out to be benign, but surgeons removed another, smaller tumor and her spleen.
The small tumor was diagnosed as Stage 1 cancer, and doctors said it had not spread to lymph nodes or other parts of her body. Pancreatic cancer is one of the most deadly, in part because it is difficult to detect in its early stages and spreads quickly.
Ginsburg, who has been more open than many justices in discussing her health, started working from home last week and participated in the justices' private conference Friday.
She had said she would not miss any of the court's oral arguments. The same was true during a bout with colon cancer a decade ago.
Known for her detailed preparation, Ginsburg interjected thoughts and questions nearly two dozen times during argument of the two cases, one involving coal leases for the Navajo Nation and the other a criminal case from Illinois.
At one point, she shared a private joke with Justice Samuel A. Alito Jr., who sits to her left, and after the two-hour session ended she lingered for a few moments talking with Justice David H. Souter, who sits on her right.
It would be hard not to be mindful of the public discussions of her health and how it might affect the court. She is one of the most liberal justices and the only woman on the court, and her departure would present President Obama with his first court appointment, although it probably would not alter the ideological split on the court.
Sen. Jim Bunning (R-Ky.) told a party gathering in his state over the weekend that Ginsburg had "bad cancer, not the kind you get better from" and predicted she would not live longer than nine months. He was warning the crowd about the kind of justice Obama might appoint in her place.
Bunning apologized yesterday "if my comments offended Justice Ginsburg" and said it was "great" to see her back at the court.
The court is entering a busy time, with many of its most important arguments scheduled between now and the end of April, and dozens of decisions to render before completing its work in June.
In the California case, the court will step into a long-running dispute over whether an eight-foot cross intended to serve as a war memorial in the 1.6-million-acre Mojave preserve violates the Constitution's ban on government endorsement of religion.
Courts have said the cross, erected on Sunrise Rock by the Veterans of Foreign Wars in 1934 and rebuilt in the years since, violated the establishment clause of the First Amendment because it appeared as if government was endorsing the Christian symbol.
Congress approved what the government called in its petition to the court an "eminently sensible" plan to resolve the issue by turning over to the VFW an acre of land on which the cross stood in exchange for five acres elsewhere in the preserve.
But the U.S. Court of Appeals for the 9th Circuit said that did nothing to alter the perception of the cross as being endorsed by the government, and it forbade the transfer.
Also yesterday, the court said it would not review the conviction of a man who grew up in Falls Church, joined al-Qaeda and plotted to assassinate President George W. Bush.
Ahmed Omar Abu Ali had complained that a judge had allowed members of the jury to see classified evidence against him, which he was not allowed to review. The U.S. Court of Appeals for the 4th Circuit agreed that was a mistake but said it was not enough to warrant a new trial.