World / Crime & Legal

Justice Ruth Bader Ginsburg active questioner in first argument since surgery

Bloomberg

Justice Ruth Bader Ginsburg was an active participant as she sat for her first U.S. Supreme Court argument since she underwent lung cancer surgery two months ago.

Ginsburg, 85, climbed three steps to the court’s bench with no apparent difficulty as the hour-long session began. She waited barely a minute before asking the first of five questions she posed in the patent case.

The justice’s presence offered reassurance to liberals worried about any prospect that she might have to step down and give President Donald Trump a third Supreme Court vacancy to fill.

Ginsburg had been working from home while recovering from the operation. She missed two weeks of arguments in January — a first for her — but is taking part in those cases by using the briefs and transcripts, court officials have said. She attended a private conference at the court with her fellow justices on Friday.

The court has an abbreviated schedule this week, with only two 60-minute arguments. In the Tuesday case, the issue is whether federal agencies, such as the U.S. Postal Service, can use an administrative system set up by Congress in 2011 to challenge previously issued patents.

Ginsburg asked questions of both sides. She asked Beth Brinkmann, the lawyer for a company trying to protect a patent against a Postal Service challenge, why Congress would “want to leave a government agency out of this second look.”

Later she suggested to Justice Department lawyer Malcolm Stewart that his argument might give the government “two bites of the apple” because it would be able to press similar arguments against a patent in federal court.

Doctors discovered the growths on Ginsburg’s lung through tests performed after she fell and broke three ribs. Ginsburg was discharged from the hospital Dec. 25.

The court said in January that Ginsburg’s recovery was on track and there was no evidence of remaining disease. She has already survived bouts with colon and pancreatic cancer.

Ginsburg, who was nominated by President Bill Clinton in 1993, has said on several occasions that she intends to stay in the job as long as she can do it “full steam.”

The last time a member of the Supreme Court missed any extensive time on the bench was the 2004-05 term, when Chief Justice William Rehnquist missed 44 arguments while battling thyroid cancer. Rehnquist died in September 2005 and was replaced by John Roberts.

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