Supreme Court Justice Ruth Bader Ginsburg joins oral argument by telephone from hospital

WASHINGTON – Chalk up another “first” for Supreme Court Associate Justice Ruth Bader Ginsburg: participating in oral argument from her hospital bed.

The high court’s oldest justice and a four-time cancer survivor, Ginsburg, 87, joined the court’s telephonic debate Wednesday morning from Johns Hopkins Hospital, where she is recovering from acute cholecystitis, a benign gallbladder condition.

And the leader of the court’s liberal minority didn’t mince words: She criticized the Trump administration’s rule exempting employers with religious or moral objections from providing cost-free insurance coverage for contraceptives in unusually sharp terms.

“You have just tossed entirely to the wind what Congress thought was essential,” she told U.S. Solicitor General Noel Francisco, who was defending the new exemption that lower courts have blocked temporarily. “The women end up getting nothing. They are required to do just what Congress didn’t want.”

Ginsburg later told Paul Clement, the lawyer representing Little Sisters of the Poor, which objected to providing contraceptives coverage, that under the rule “the balance has to be all for the Little Sisters-type organizations and not at all for the women.”

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Ginsburg initially sought medical care Monday after the first day of oral arguments held by telephone conference call, a first for the court prompted by the coronavirus pandemic. She received outpatient tests at Sibley Memorial Hospital in Washington,  D.C., which confirmed that she had a gallstone blocking her cystic duct, resulting in an infection.

Ginsburg is expected to remain in the hospital for a day or two, the court’s spokeswoman, Kathy Arberg, has said. She has had several health scares dating back to 1999, including bouts with colorectal, pancreatic and lung cancer. 

Ironically, the coronavirus pandemic is allowing Ginsburg to participate in oral arguments because they are being held by phone, with the justices in different remote locations. In the past, she has been forced to miss occasional oral arguments held in the courtroom while recuperating from cancer treatments.

Ginsburg was nominated to the bench by President Bill Clinton in 1994 and is now second in length of service among the current justices, behind Associate Justice Clarence Thomas. The court has a 5-4 conservative majority that could be expanded if she were to be replaced by a Republican president and Senate. If Democrats win the White House or the Senate, that would change the equation.

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