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Ruth Bader Ginsburg's absence creates uncertainty about Supreme Court's present and future

CNN logo CNN 1/11/2019 By Joan Biskupic, CNN legal analyst & Supreme Court biographer
WASHINGTON, DC - DECEMBER 14: U.S. Supreme Court Justice Ruth Bader Ginsburg speaks during a naturalization ceremony at the Rotunda of the National Archives December 14, 2018 in Washington, DC. The National Archives held the ceremony to mark the Bill of Rights Day. (Photo by Alex Wong/Getty Images) © Alex Wong/Getty Images WASHINGTON, DC - DECEMBER 14: U.S. Supreme Court Justice Ruth Bader Ginsburg speaks during a naturalization ceremony at the Rotunda of the National Archives December 14, 2018 in Washington, DC. The National Archives held the ceremony to mark the Bill of Rights Day. (Photo by Alex Wong/Getty Images)

Justice Ruth Bader Ginsburg's cancer surgery and ongoing recuperation has cast an atmosphere of uncertainty over the Supreme Court at a critical time for its future and as the legal fate of several controversial White House policies hang in the balance.

Ginsburg, who was forced to miss oral arguments this week, has given no indication that she wants to step down. In fact, before her recent illness, the iconic justice who has served for a quarter century spoke of staying another five years.

But if she were to leave the bench, President Donald Trump, who appointed successors to Antonin Scalia and Anthony Kennedy, would have his first chance to replace a confirmed liberal with a solid conservative.

The significance would be enormous long term, of course. Yet even in the short term, this is a sensitive time for the Supreme Court as it is establishing the final contours of its 2018-19 session and facing multiple battles over Trump administration policies.

The justices already have high-profile disputes over the administration's plan for a citizenship question on the 2020 Census, religious monuments on public land and partisan gerrymanders on their agenda. They could announce as soon as Friday if they would add questions related to abortion rights, LGBTQ discrimination and the efforts by Trump to end the Obama-era Deferred Action for Childhood Arrivals program that protects from deportation young undocumented immigrants who came to the United States as children.

RELATED: 2019 is the year the Supreme Court will make or break Trump

Ginsburg, who will turn 86 in March, is recuperating at her Washington, DC, home. She has been reading legal briefs and participating in cases by relaying her votes to the other justices.

Uncertainty is not a new condition for a nine-member bench that over the past three years experienced the death of Scalia, more than a year with only eight justices, the resignation of Kennedy and volatile confirmation hearings for Brett Kavanaugh that delayed his arrival at the start of the current term.

Ginsburg underwent surgery on December 21 to remove malignant nodules on her left lung, discovered in a medical check after she had fallen and broken three ribs in early November.

Despite the seriousness of the lung operation, she left open the possibility that she might return for the two-week January oral arguments that began last Monday. A survivor of two prior cancer surgeries, in 1999 and 2009, Ginsburg had made it a point of pride that she missed no oral arguments during those episodes.

But this time that was not possible.

A court spokeswoman said it is not known when Ginsburg would return. Next Monday, when another round of arguments begins, has not been ruled out. But the justice could have as a surer goal of the February sitting, which follows a scheduled four-week Supreme Court recess and begins February 19.

After her bouts with colorectal cancer in 1999 and pancreatic cancer in 2009, Ginsburg demonstrated a remarkable resiliency. Now, a decade later, the outcome of her current health battle is likely to be evident only with more time.

In recent years Ginsburg has become a cultural phenomenon, her life portrayed in film, books and television. Bloggers and other fans tagged her with the moniker Notorious RBG (a play on the late rapper Notorious B.I.G.) and have celebrated everything from her liberal dissents to iron-pumping workouts. Before becoming a judge, first on a lower court in 1980, she was a women's right advocate who argued six cases before the Supreme Court.

Oral arguments and closed-door conferences

During oral arguments this week, held Monday through Wednesday, Ginsburg's absence was manifest in multiple ways. Before each session, Chief Justice John Roberts announced that she would still be taking part in the resolution of cases through reading briefs and argument transcripts.

For regular court observers, her missing voice was notable. Sitting to Roberts' immediate left, based on her seniority, Ginsburg often asks the first question and actively presses lawyers on her points. She is the leader of the four liberals -- all Democratic appointees -- on a court generally controlled by the five conservative justices -- all Republican appointees.

Oral arguments on cases are an important part of the resolution of a dispute, but they are secondary to the written briefs and prior case law on which justices base their decisions. Arguments tend to be a forum for testing the lawyers' dueling positions and for the justices themselves to telegraph positions to their fellow justices. The nine typically do not discuss cases before oral arguments; rather, they vote in private after the sessions each week.

Ginsburg's absence comes at a complicated time for the court, as the justices are making choices this month on which final cases to add to their 2018-19 calendar. Oral arguments are held through April and decisions usually come by the end of June.

The justices meet in private on those agenda-setting choices, as well as the resolution of cases heard. In order of seniority, they go around the table casting votes and explaining their reasoning. Yet, the court is a place where much persuasion occurs in writing, rather than in conversation. Their ultimate decisions are the result of multiple drafts and memos circulated among the chambers of the nine over several weeks.

In past decades, including when then-Chief Justice William Rehnquist missed several oral argument sessions in the 2004-2005 term because of thyroid cancer, justices have cast their votes, authored opinions and remained a persuasive force throughout an illness.

For her part, Ginsburg kept up public appearances between the time she learned in November of the lung malignancy and her December operation. It was only then that her condition became public.

At a New York appearance last month, when asked the recurring question of how long she expected to remain on the bench, she observed that at her age one cannot predict and repeated her mantra: "I will do this job as long as I can do it full steam."

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