Today’s arguments in the lawsuit over President Bush’s faith-based grant initiatives went at a dizzying pace—even more so when you consider that the issue was "standing"and whether taxpayers have legal grounds to file suit attacking the program in the first place. The justices were so engaged in the questioning it seemed like some of them were about to leap out of their high-backed leather chairs.
Chief Justice Roberts really ran the show, completely directing the argument against taxpayer standing—and even stepped in a couple of times to help Solicitor General Paul Clement explain why the atheist group, Freedom from Religion Foundation, had no legal right to sue. Roberts nailed Andrew Pincus, the group’s lawyer, with a pointed question right out of the box: "I don’t understand, under your theory, why couldn’t any taxpayer sue our marshal for saying, ‘God save this honorable court?’" It was Pincus’s very first question, and it turned the argument. By the end, it appeared that the atheists were going to be on the losing side—though the justices didn’t seem especially taken with Clement’s proposals, either (or, for that matter, with the line-up of their own precedents they have to take up to decide the case).
As intense as the arguments were—and as fun as it was seeing Roberts in action—the real drama of the day occurred at the end of the argument. Typically, the justices rise from the bench, turn around and leave the courtroom for their chambers in very short order. Usually, spectators wait no more than a few seconds before the last justice disappears behind the red curtains. Then the court officers allow us all to file out of other exits at the front and sides of the courtroom. But today, we all were held in place for nearly a half a minute more –an eternity to a TV reporter--as Justice Ginsburg slowly collected her things and carefully left the courtroom. Justice Souter lingered behind at his chair, waiting to walk alongside her—almost as if he wanted to see if she needed assistance.
It was strikingly odd. I was standing next to Jim Vincini of Reuters, and we looked at each other with some alarm. No one could recall seeing Ginsburg in such slow motion, and it immediately begged the question of her health—which of course begs the question of whether any of the justices are going to be leaving the court anytime soon and give George W. Bush his third nomination. I have predicted with confidence that no one else will leave by design, and I’ve flatly rejected any suggestions that Justice Ginsburg was not at the top of her game physically. She’ll be 74 next month, and she’s active and social—and said to be recovered from her bout with cancer. People who don’t know Justice Ginsburg always say she looks so slight, so frail. But that’s Justice Ginsburg. She is slight. Even when she fell asleep during oral argument awhile back, I didn’t read anything into it since she’d just returned from out of the country and could easily have been suffering from jet lag.
The Court’s public information office said this afternoon that Ginsburg is absolutely fine. And she did ask several of the questions during the argument—she was focused and involved. So perhaps she twisted an ankle during her workouts ( she does exercise regularly). But it still made me think I’d better start pulling those possible retirement files together. As Justice O’Connor showed us all in 2005, big surprises can happen.
UPDATE: The shoe must go on! Linda Greenhouse, the New York Times correspondent who covers the Court, writes today that Justice Ginsburg was slowed in her exit last week by a missing shoe. (And I thought it was only us southern gals who like to kick off our shoes during a good argument!) I had reported in my blog that the Court said Justice Ginsburg was "absolutely fine," and I’d suggested that she’d perhaps turned her ankle during a strenuous workout. So thanks to Linda for helpfully solving the mystery. (And thanks to those of you who read my blog and were able to grasp my bigger point. With the Court in the balance, the health of any justice is an issue of critical concern, and bold predictions -- including my own -- about non-retirements aren’t worth much, as Justice O’Connor showed us all in 2005.)