Illness and Secrecy on the Supreme Court
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《新英格兰医药杂志》
Last October, soon after the opening of the current Supreme Court term, a lawyer who often argues cases before the Court noted with surprise that Chief Justice William Rehnquist was looking unusually pale and fragile as compared with his appearance six months previously. Some observers also noticed that Rehnquist's voice sounded hoarse. Before the month's end, while the Court was in recess, the 80-year-old chief justice was admitted to the National Naval Medical Center in Bethesda, Maryland, where — according to a terse official statement released by the Court — he underwent a tracheotomy "in connection with a recent diagnosis of thyroid cancer."
(Figure)
The chief justice initially predicted that he would be back on the bench when the Court reconvened on November 1, just nine days after his surgical procedure. But when that morning arrived, Rehnquist's seat remained empty, and he announced that he was recuperating at home and receiving radiation therapy and chemotherapy. He added that he was continuing to work on Court matters and told colleagues that he reserved the right to participate in cases while he was absent by reading legal briefs and the transcripts of oral arguments. The chief justice's statement provided no further information on his medical diagnosis or condition, except to say, "According to my doctors, my plan to return to the office today was too optimistic."
In the weeks that followed, President George W. Bush was reelected and the Supreme Court heard oral arguments on a variety of important cases and handed down some of the first decisions of the term. However, Americans were told nothing more about the serious illness affecting the leader of one branch of the nation's government. Lacking medical information from Rehnquist or his physicians, reporters interviewed outside specialists in thyroid disorders, who used their clinical knowledge and the few facts available about the chief justice's treatment to deduce that he probably had anaplastic cancer of the thyroid, a rare and almost uniformly fatal form of cancer. Of the four types of thyroid cancer, only a diagnosis of anaplastic carcinoma seemed to explain the decisions of Rehnquist's doctors not to resect the tumor and to treat him with radiation and chemotherapy. Anaplastic thyroid carcinoma is rapidly progressive, is often characterized by hoarseness, and can cause respiratory difficulty by paralyzing the vocal cords or infiltrating the airway, necessitating a tracheotomy. It is relatively unresponsive to radiation and chemotherapy, and median survival of patients with the disease is two to six months. However, there was no official confirmation of this widely reported educated guess.
Considering the power wielded by the modern Supreme Court and the apparent gravity of the chief justice's illness, Rehnquist's decision not to provide the American public with any more details of his diagnosis and treatment was surprising, and it contrasts sharply with the relatively detailed release of medical information in recent months by other current and former public officials, including Vice President Dick Cheney, former President Bill Clinton, and National Security Advisor Condoleezza Rice. Rehnquist remained in seclusion, reportedly declining visits from colleagues. He provided no further updates on his medical condition, although reporters who cover the Supreme Court predicted he would soon announce his plans to retire. "A sense of sadness and uncertainty has spread throughout the court and into the wider community of federal judges, who have received no more information than the general public about the chief justice's condition and prospects," wrote New York Times reporter Linda Greenhouse in November.1 One factor contributing to that uncertainty was the question of how Rehnquist's cancer and the side effects of its treatment might be affecting his ability to keep up with the Court's ongoing caseload and to participate in its deliberations as he continued to work at home. "The issue is, how clear-thinking is this man?" wondered an endocrinologist who has treated many patients with anaplastic thyroid cancer. "How good is his breathing? Could he have cancer outside the thyroid area — in the lung or in the brain? Is he on steroids? Is the chief justice really capable of reading briefs?"
Rehnquist's determined silence regarding the details of his illness and treatment continues a tradition of fiercely guarded secrecy among Supreme Court justices. Although his is the first protracted absence of a justice from the bench in more than a decade, Justices Sandra Day O'Connor, John Paul Stevens, and Ruth Bader Ginsburg have all been treated for cancer during their tenure on the Court, and each provided few medical details to the public. Stevens, the oldest of the justices, at 84, underwent surgery and radiation treatment for prostate cancer in 1992. Ginsburg, 71, had surgery in 1999 for colon cancer that had initially been misdiagnosed as diverticulitis. O'Connor, 74, had breast-cancer surgery in 1988. She commented later that the media's interest in her illness was the worst aspect of the experience; in 1990, responding to repeated rumors about her health, she put out a statement saying, "I am not sick. I am not bored. I am not resigning." Rehnquist himself is on record stating that the justices have no responsibility to release information about their personal health. In testimony before the Senate Judiciary Committee in 1980, he said, "So long as I can perform my duties, I do not think I have any obligation to give the press a health briefing."2
Like other Americans, Supreme Court justices have a right to maintain the privacy of their medical records. However, because of the justices' life tenure and the Court's unique independence from oversight, there is no formal mechanism for monitoring their physical and mental competence. Justices can be removed from the bench only by congressional impeachment. Their deliberations are secret, and most of their work is conducted in private. Lawyers, journalists, and members of the public can assess their physical stamina and mental sharpness only by observing their behavior during oral arguments. Other federal judges are subject to the Judicial Conduct and Disability Act, a 1980 law that allows anyone to file a formal complaint alleging that a judge has become physically or mentally unable to perform his or her duties. But that law does not apply to the Supreme Court, which is completely self-governing.
A justice who becomes ill is free to make his or her own decisions about what medical information to share with colleagues or the public. At times throughout the Court's history, there have been justices who, although seriously ill or mentally impaired, remained on the bench when they could no longer do their work effectively. The public was almost always unaware of the severity of the illness or disability. In some cases, a sick justice's brethren on the bench agreed among themselves to stop assigning opinions to their colleague, to delay decisions on cases in which the impaired justice would have cast the deciding vote, or to put pressure on the justice to resign.
Legal historian David J. Garrow of Emory University cites examples of 15 Supreme Court justices — including 11 during the 20th century — "whose mental decrepitude or mentally infirm judgment should have led to their departure from the bench years or months before they did vacate their seats." Judging by contemporary descriptions of the symptoms, the most frequent apparent cause was dementia (probably due to Alzheimer's disease), but some justices had strokes or became mentally ill, and at least one was dependent on drugs.3
The most recent and best known case is that of Justice William O. Douglas, the longest-serving justice in the Court's history, who had a severe stroke in 1974 at the age of 75. Despite difficulty speaking, constant pain, and frequent confusion and loss of concentration, Douglas refused to consider retiring because he was unwilling to allow a Republican, President Gerald Ford, to name his successor. His condition deteriorated until, in October 1975, seven of the other eight justices (including Rehnquist, the youngest) privately agreed to strip Douglas of all power to influence decisions by holding over until the next term any case in which he would have cast a deciding vote.4 The dissenter, Justice Byron R. White, wrote a letter to Chief Justice Warren Burger protesting that his colleagues' action was unconstitutional. "If it is an impeachable offense for an incompetent Justice to purport to sit as a judge, is it not the task of Congress, rather than this Court, to undertake proceedings to determine the issue of competence?" White asked.5 A few weeks later, Douglas formally retired, but he soon returned to his office, demanding to be allowed to continue to participate in some of the Court's deliberations. His colleagues quite properly refused. Rehnquist is the only current member of the Court who served during Douglas's stormy departure.
(Figure)
The U.S. Supreme Court, 1972.
Pictured are justices (front row, left to right) Potter Stewart, William O. Douglas, Warren E. Burger, William J. Brennan, Jr., Byron R. White, (back row, left to right) Lewis Powell, Jr., Thurgood Marshall, Harry A. Blackmun, and William H. Rehnquist, who had joined the court in January 1972. Douglas had a severe stroke in 1974 but refused to retire until, in October 1975, the other justices stripped him of his power to influence decisions.
Bettman/Corbis.
There are two separate questions regarding the serious illness of a Supreme Court justice. First, does the public have a right to information about the justice's diagnosis, treatment, and condition? And second, what measures can ensure the timely retirement of a justice who is severely impaired by physical or mental illness?
Legal historian Garrow believes that, as powerful public officials, Supreme Court justices who are seriously ill have a responsibility to release medical information, and he faults the media for not being sufficiently aggressive in demanding it. "The culture of Washington has allowed the justices to define themselves as this quasi-royal body who are not subject to most of the norms and questions that apply to the other two branches of government," he said.
Some other experts disagree, contending that the public's right to health information is less compelling in the case of Supreme Court justices than in that of elected officials in the executive and legislative branches, where the pace of work is faster and urgent decisions must be made on a daily basis. The Court can function, at least for a short time, with eight healthy justices. "I think the general principle of respecting the right to medical privacy of government officials, including the highest ones, gives the signal that we all have a right to medical privacy," commented Richard Sobel, a political scientist at Harvard Medical School's Program in Psychiatry and the Law.
But the Supreme Court's tradition of secrecy, combined with the absence of a formal system for monitoring justices' competence, seems to increase the chances that a sick or impaired justice may be allowed to remain on the bench too long, potentially deciding fundamental questions of constitutional law. Past campaigns to pass a constitutional amendment imposing a mandatory retirement age for Supreme Court justices have failed, and in any case, age is not necessarily a reliable predictor of a justice's health and mental acuity. (Court observers point out that Justice Stevens, the oldest of the current justices, is also one of the most physically fit and one of the sharpest questioners on the bench.) As for congressional action, legal experts say that any effort by Congress to pass a law imposing an external mechanism for evaluating the physical and mental competence of Supreme Court justices would be challenged on constitutional grounds.
Although sitting justices certainly cannot be forced to disclose personal health data, greater willingness on their part to share information about their illnesses, medical conditions, and treatment would strengthen public confidence that the Court is functioning effectively. The question of how to ensure that justices are competent also deserves wider public discussion. In the executive branch, the 25th Amendment provides that if the President becomes unable to "discharge the powers and duties of his office," a declaration to that effect should be transmitted to the House and the Senate by "a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide." The justices of the Supreme Court could follow a similar procedure. What is important, Sobel suggested, is that a clear procedure be established that protects the privacy of the justice who is ill and assigns responsibility for ensuring competence to a group of that person's peers. According to Supreme Court spokeswoman Kathy Arberg, "The Court has an internal practice" for dealing with such situations.
When concerns arise in other settings about a person's competence to do an important job — be it driving a school bus, flying an airplane, or serving as a general in the military — an increasingly common strategy is to require a confidential examination by a forensic psychiatrist. This measure has periodically been used to assess the competence of sitting federal judges, and it could also be used in the case of a Supreme Court justice. If the current justices have already agreed on such a policy, or have adopted some other procedure for responding to concerns about an individual justice's competence, they should share that decision with the American public.
Source Information
Dr. Okie is Contributing Editor of the Journal, based in Washington, D.C.
References
Greenhouse L. New York Times. November 6, 2004:25.
Nomination of Justice William Hubbs Rehnquist, Hearings before the Committee on the Judiciary, United States Senate, on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States, 99th Cong, 2d Sess 134 (July 29-31 and Aug 1, 1986).
Garrow DJ. Mental decrepitude on the U.S. Supreme Court: the Historical case for a 28th Amendment. University of Chicago Law Review, Fall 2000. (67 U. Chi. L. Rev. 995.)
Ward A. The tenth justice: the retirement of William O. Douglas. J Supreme Court Hist 2000;25:296.
Byron White to Warren Burger, October 20, 1975. In: Hutchinson DJ. The man who once was Whizzer White: a portrait of Justice Byron R. White. New York: Free Press, 1998:463.(Susan Okie, M.D.)
(Figure)
The chief justice initially predicted that he would be back on the bench when the Court reconvened on November 1, just nine days after his surgical procedure. But when that morning arrived, Rehnquist's seat remained empty, and he announced that he was recuperating at home and receiving radiation therapy and chemotherapy. He added that he was continuing to work on Court matters and told colleagues that he reserved the right to participate in cases while he was absent by reading legal briefs and the transcripts of oral arguments. The chief justice's statement provided no further information on his medical diagnosis or condition, except to say, "According to my doctors, my plan to return to the office today was too optimistic."
In the weeks that followed, President George W. Bush was reelected and the Supreme Court heard oral arguments on a variety of important cases and handed down some of the first decisions of the term. However, Americans were told nothing more about the serious illness affecting the leader of one branch of the nation's government. Lacking medical information from Rehnquist or his physicians, reporters interviewed outside specialists in thyroid disorders, who used their clinical knowledge and the few facts available about the chief justice's treatment to deduce that he probably had anaplastic cancer of the thyroid, a rare and almost uniformly fatal form of cancer. Of the four types of thyroid cancer, only a diagnosis of anaplastic carcinoma seemed to explain the decisions of Rehnquist's doctors not to resect the tumor and to treat him with radiation and chemotherapy. Anaplastic thyroid carcinoma is rapidly progressive, is often characterized by hoarseness, and can cause respiratory difficulty by paralyzing the vocal cords or infiltrating the airway, necessitating a tracheotomy. It is relatively unresponsive to radiation and chemotherapy, and median survival of patients with the disease is two to six months. However, there was no official confirmation of this widely reported educated guess.
Considering the power wielded by the modern Supreme Court and the apparent gravity of the chief justice's illness, Rehnquist's decision not to provide the American public with any more details of his diagnosis and treatment was surprising, and it contrasts sharply with the relatively detailed release of medical information in recent months by other current and former public officials, including Vice President Dick Cheney, former President Bill Clinton, and National Security Advisor Condoleezza Rice. Rehnquist remained in seclusion, reportedly declining visits from colleagues. He provided no further updates on his medical condition, although reporters who cover the Supreme Court predicted he would soon announce his plans to retire. "A sense of sadness and uncertainty has spread throughout the court and into the wider community of federal judges, who have received no more information than the general public about the chief justice's condition and prospects," wrote New York Times reporter Linda Greenhouse in November.1 One factor contributing to that uncertainty was the question of how Rehnquist's cancer and the side effects of its treatment might be affecting his ability to keep up with the Court's ongoing caseload and to participate in its deliberations as he continued to work at home. "The issue is, how clear-thinking is this man?" wondered an endocrinologist who has treated many patients with anaplastic thyroid cancer. "How good is his breathing? Could he have cancer outside the thyroid area — in the lung or in the brain? Is he on steroids? Is the chief justice really capable of reading briefs?"
Rehnquist's determined silence regarding the details of his illness and treatment continues a tradition of fiercely guarded secrecy among Supreme Court justices. Although his is the first protracted absence of a justice from the bench in more than a decade, Justices Sandra Day O'Connor, John Paul Stevens, and Ruth Bader Ginsburg have all been treated for cancer during their tenure on the Court, and each provided few medical details to the public. Stevens, the oldest of the justices, at 84, underwent surgery and radiation treatment for prostate cancer in 1992. Ginsburg, 71, had surgery in 1999 for colon cancer that had initially been misdiagnosed as diverticulitis. O'Connor, 74, had breast-cancer surgery in 1988. She commented later that the media's interest in her illness was the worst aspect of the experience; in 1990, responding to repeated rumors about her health, she put out a statement saying, "I am not sick. I am not bored. I am not resigning." Rehnquist himself is on record stating that the justices have no responsibility to release information about their personal health. In testimony before the Senate Judiciary Committee in 1980, he said, "So long as I can perform my duties, I do not think I have any obligation to give the press a health briefing."2
Like other Americans, Supreme Court justices have a right to maintain the privacy of their medical records. However, because of the justices' life tenure and the Court's unique independence from oversight, there is no formal mechanism for monitoring their physical and mental competence. Justices can be removed from the bench only by congressional impeachment. Their deliberations are secret, and most of their work is conducted in private. Lawyers, journalists, and members of the public can assess their physical stamina and mental sharpness only by observing their behavior during oral arguments. Other federal judges are subject to the Judicial Conduct and Disability Act, a 1980 law that allows anyone to file a formal complaint alleging that a judge has become physically or mentally unable to perform his or her duties. But that law does not apply to the Supreme Court, which is completely self-governing.
A justice who becomes ill is free to make his or her own decisions about what medical information to share with colleagues or the public. At times throughout the Court's history, there have been justices who, although seriously ill or mentally impaired, remained on the bench when they could no longer do their work effectively. The public was almost always unaware of the severity of the illness or disability. In some cases, a sick justice's brethren on the bench agreed among themselves to stop assigning opinions to their colleague, to delay decisions on cases in which the impaired justice would have cast the deciding vote, or to put pressure on the justice to resign.
Legal historian David J. Garrow of Emory University cites examples of 15 Supreme Court justices — including 11 during the 20th century — "whose mental decrepitude or mentally infirm judgment should have led to their departure from the bench years or months before they did vacate their seats." Judging by contemporary descriptions of the symptoms, the most frequent apparent cause was dementia (probably due to Alzheimer's disease), but some justices had strokes or became mentally ill, and at least one was dependent on drugs.3
The most recent and best known case is that of Justice William O. Douglas, the longest-serving justice in the Court's history, who had a severe stroke in 1974 at the age of 75. Despite difficulty speaking, constant pain, and frequent confusion and loss of concentration, Douglas refused to consider retiring because he was unwilling to allow a Republican, President Gerald Ford, to name his successor. His condition deteriorated until, in October 1975, seven of the other eight justices (including Rehnquist, the youngest) privately agreed to strip Douglas of all power to influence decisions by holding over until the next term any case in which he would have cast a deciding vote.4 The dissenter, Justice Byron R. White, wrote a letter to Chief Justice Warren Burger protesting that his colleagues' action was unconstitutional. "If it is an impeachable offense for an incompetent Justice to purport to sit as a judge, is it not the task of Congress, rather than this Court, to undertake proceedings to determine the issue of competence?" White asked.5 A few weeks later, Douglas formally retired, but he soon returned to his office, demanding to be allowed to continue to participate in some of the Court's deliberations. His colleagues quite properly refused. Rehnquist is the only current member of the Court who served during Douglas's stormy departure.
(Figure)
The U.S. Supreme Court, 1972.
Pictured are justices (front row, left to right) Potter Stewart, William O. Douglas, Warren E. Burger, William J. Brennan, Jr., Byron R. White, (back row, left to right) Lewis Powell, Jr., Thurgood Marshall, Harry A. Blackmun, and William H. Rehnquist, who had joined the court in January 1972. Douglas had a severe stroke in 1974 but refused to retire until, in October 1975, the other justices stripped him of his power to influence decisions.
Bettman/Corbis.
There are two separate questions regarding the serious illness of a Supreme Court justice. First, does the public have a right to information about the justice's diagnosis, treatment, and condition? And second, what measures can ensure the timely retirement of a justice who is severely impaired by physical or mental illness?
Legal historian Garrow believes that, as powerful public officials, Supreme Court justices who are seriously ill have a responsibility to release medical information, and he faults the media for not being sufficiently aggressive in demanding it. "The culture of Washington has allowed the justices to define themselves as this quasi-royal body who are not subject to most of the norms and questions that apply to the other two branches of government," he said.
Some other experts disagree, contending that the public's right to health information is less compelling in the case of Supreme Court justices than in that of elected officials in the executive and legislative branches, where the pace of work is faster and urgent decisions must be made on a daily basis. The Court can function, at least for a short time, with eight healthy justices. "I think the general principle of respecting the right to medical privacy of government officials, including the highest ones, gives the signal that we all have a right to medical privacy," commented Richard Sobel, a political scientist at Harvard Medical School's Program in Psychiatry and the Law.
But the Supreme Court's tradition of secrecy, combined with the absence of a formal system for monitoring justices' competence, seems to increase the chances that a sick or impaired justice may be allowed to remain on the bench too long, potentially deciding fundamental questions of constitutional law. Past campaigns to pass a constitutional amendment imposing a mandatory retirement age for Supreme Court justices have failed, and in any case, age is not necessarily a reliable predictor of a justice's health and mental acuity. (Court observers point out that Justice Stevens, the oldest of the current justices, is also one of the most physically fit and one of the sharpest questioners on the bench.) As for congressional action, legal experts say that any effort by Congress to pass a law imposing an external mechanism for evaluating the physical and mental competence of Supreme Court justices would be challenged on constitutional grounds.
Although sitting justices certainly cannot be forced to disclose personal health data, greater willingness on their part to share information about their illnesses, medical conditions, and treatment would strengthen public confidence that the Court is functioning effectively. The question of how to ensure that justices are competent also deserves wider public discussion. In the executive branch, the 25th Amendment provides that if the President becomes unable to "discharge the powers and duties of his office," a declaration to that effect should be transmitted to the House and the Senate by "a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide." The justices of the Supreme Court could follow a similar procedure. What is important, Sobel suggested, is that a clear procedure be established that protects the privacy of the justice who is ill and assigns responsibility for ensuring competence to a group of that person's peers. According to Supreme Court spokeswoman Kathy Arberg, "The Court has an internal practice" for dealing with such situations.
When concerns arise in other settings about a person's competence to do an important job — be it driving a school bus, flying an airplane, or serving as a general in the military — an increasingly common strategy is to require a confidential examination by a forensic psychiatrist. This measure has periodically been used to assess the competence of sitting federal judges, and it could also be used in the case of a Supreme Court justice. If the current justices have already agreed on such a policy, or have adopted some other procedure for responding to concerns about an individual justice's competence, they should share that decision with the American public.
Source Information
Dr. Okie is Contributing Editor of the Journal, based in Washington, D.C.
References
Greenhouse L. New York Times. November 6, 2004:25.
Nomination of Justice William Hubbs Rehnquist, Hearings before the Committee on the Judiciary, United States Senate, on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States, 99th Cong, 2d Sess 134 (July 29-31 and Aug 1, 1986).
Garrow DJ. Mental decrepitude on the U.S. Supreme Court: the Historical case for a 28th Amendment. University of Chicago Law Review, Fall 2000. (67 U. Chi. L. Rev. 995.)
Ward A. The tenth justice: the retirement of William O. Douglas. J Supreme Court Hist 2000;25:296.
Byron White to Warren Burger, October 20, 1975. In: Hutchinson DJ. The man who once was Whizzer White: a portrait of Justice Byron R. White. New York: Free Press, 1998:463.(Susan Okie, M.D.)