Would you have liked to know before this past Tuesday night via a public records request from a newspaper that 79-year-old Antonin Scalia suffered from diabetes and artery disease and sleep apnea which prompted him to sleep with some sort of breathing apparatus by his bed? I sure would have. I paid his salary after all, and so did you, and the fact that his poor health — his failing health — was kept private from all of us — and presumably the White House and Senate Judiciary Committee, too — highlights another discomforting example where the United States Supreme Court wants to have it both ways.
The Court represents the third branch of government, often deciding the most monumental conflicts of our time, and yet in many ways it still wants to pretend it’s an old-school law firm where basic information is doled out at the discretion of the partners. I get the idea that the Court, any court, must remain private in its inner functions. But I do not get the idea that the Court should be allowed to hide as a hoary matter of tradition the medical conditions of its justices. We all should have known more about how sick Justice Scalia really was.
There is no law that requires a president to get an annual checkup but presidents now do — regularly — and when they do we promptly hear about the results from government doctors. President Obama, for example, has had three such “periodic exams,” the last on June 12, 2014, according to Mark Knoller, my CBS Radio News colleague and the unofficial White House historian. Why should it not be so for each of the justices on the Court, three of whom are over 78 years old? What privacy right do they have to keep this information secret when their public employment, not to mention the timing of the nomination of their successors, depends so heavily upon it?
I’ve read the historians who have chronicled the medical (and mental) difficulties many of the past justices have had. I know all about how grim it was at the end for Justices Stephen Johnson Field and Hugo Black and William O. Douglas and Thurgood Marshall. But why should it be left to historians to share this news with us after the fact? Did Justice Scalia’s medical condition affect or impair his ability to judge? Could it have done so? Did his ongoing treatment (whatever it was) create some sort of conflict of interest, or potential conflict of interest, which should have been disclosed and discussed? These are questions that should have come up when he was alive, not now that he is dead and buried.
The truth is that the Supreme Court belongs to us all, and so do the justices, and each of them should be required to take regular physicals and share with the public the material results of those examinations. As historian David Garrow recently has noted the 9th Circuit, one of the largest federal appeals courts in the nation, offers a battery of testing to identify cognitive decline among its jurists. Every court in America should embrace such testing and expand it to include evaluations of physical conditions (and potential decline) as well. It’s a price Article III judges in particular should be required to bear given the lifetime appointment they receive.
Sure, in some instances the disclosure of this information will necessarily create rampant speculation about when or if those justices should resign. So what? Anyone out there think that Justice Scalia would have resigned if the world knew he was as sick as he was? And, anyway, isn’t a policy of more information about the health of the justices better than the policy of secrecy we have now? Where all of us labor in the dark, looking for signs, hoping for scraps of information from nine of our most important public servants?
If anything, one could argue that the case for more medical disclosure from the justices is stronger than it is for the president because our presidents are term-limited and our justices are life-tenured and cannot be removed except by death or resignation or impeachment. No one would have moved to impeach Justice Scalia for his ailments. But no one can seriously argue that information about his ailments, and their potential affect on him, were immaterial.
We learned about Justice Ruth Bader Ginsburg’s cancer and her heart surgery and the world did not end (and she did not resign under public pressure). We’ve known for years that Justice Sotomayor suffers from diabetes and it has not shaped our views of her jurisprudence. Chief Justice John Roberts famously collapsed a few years ago in Maine from a seizure and I’ll bet you had completely forgotten about that episode. The point is we shouldn’t have to wait for catastrophic medical news to seep out about this aged body of jurists; the sporadic glimpses we get into the health of the justices are no substitutes for regular assessments shared with the public.
Unlike some, I was not upset that no autopsy was performed on Justice Scalia. If his family did not wish one, and Texas officials did not see a need to order one, that’s good enough for me. But the fact that everyone closely involved in his life seems to have been less surprised by his death than the rest of us means we were not being given a true and accurate picture of his health in the days and weeks and months and years leading up to his death. And that is worrisome coming from the least accountable and transparent branch of government. I don’t need to see the medical charts. But I think we all have a right to know whether and to what extent our justices are ailing.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.