The announcement seemed intended to quiet a rising chorus on the right that Ginsburg’s health was worse than had been reported following a pulmonary lobectomy on Dec. 21. There were even unattributed and unsubstantiated social media claims that the 85-year-old justice was planning to retire, giving President Trump a chance to nominate a third member of the nine-justice court.
The statement also came as the court began putting the finishing touches on the cases it would consider this term. With Ginsburg participating remotely, the justices added eight new cases, none of which would alter the view of the term as relatively low-key.
The justices withheld action on a slew of controversial cases: Trump’s plan to end Deferred Action for Childhood Arrivals, the program known as DACA that protects some undocumented immigrants brought to this country as children; the administration’s directive to ban transgender service members in the military; restrictions on abortions in Indiana and on guns in New York City; and whether federal law forbids employment discrimination based on sexual orientation and gender identity.
The justices could still take some or all of those cases, but time is running short to have them heard during the current term. Generally, the court selects its docket by the end of January in order to hold oral arguments through April and decide all cases by the end of June.
Hanging over those decisions lately has been Ginsburg’s health scare.
In November, the justice revealed that she fell in her chambers and broke three ribs. It may been fortunate: Tests during her brief stay at George Washington University Hospital revealed two malignant nodules in her left lung.
In a pulmonary lobectomy, a lobe of the lung is completely removed. The right lung has three lobes, the left two. Cancer specialists said such an operation is scheduled when there is no evidence the disease has spread to other organs.
Friday’s announcement indicated it had not spread to the lymph nodes. Otherwise, additional treatment would have been required.
This week, for the first time since she joined the court in 1993, Ginsburg missed a round of oral arguments.
Ginsburg was treated for colorectal cancer in 1999, and pancreatic cancer was discovered at a very early stage 10 years later. Near the end of 2014, she had a heart stent implanted.
In those cases, she scheduled treatment during the court’s off days.
John Kucharczuk, a thoracic surgeon at the University of Pennsylvania, said earlier this week that the usual recovery time for such a surgery is six to eight weeks, so it wasn’t surprising that Ginsburg missed arguments. He said even younger patients are “tired and washed out” after the operation and some require pain medications.
The court has said Ginsburg will participate in the cases whose oral arguments she misses.
“Justice Ginsburg will continue to work from home next week and will participate in the consideration and decision of the cases on the basis of the briefs and the transcripts of oral arguments,” Arberg said.
After next Wednesday, the court does not hold oral arguments until Feb. 19.
Ginsburg will turn 86 in March. She is the oldest member of the court and the longest-serving member of the court’s four-member liberal wing.