Chief Justice Roberts's Health, After His Recent Seizure: What We Know, What We Don't Know, and What We May Never Know

By ELAINE CASSEL
Thursday, Aug. 02, 2007

The news was shocking: The Supreme Court's Chief Justice, John Roberts, had suffered from a seizure while on the dock of his Maine summer home, causing him to fall and sustain minor scratches and bruises. We quickly learned that the seizure was "idiopathic" (its cause was unknown), and that neurological tests found Roberts to be "fine."

The news was a surprise, especially because Roberts is the youngest member of the court, thought to be in good health, and a Republican. Currently, as a column by Edward Lazarus recently discussed, it is liberals who tend to worry, with good reason, about aging liberal Justices' potentially leaving the Court for health reasons, and being replaced by conservatives.

In this column, I will explain the general nature of Roberts's diagnosis, and what it means for his service as Chief Justice. In addition, I will argue that a Justice's ability to keep secrets that may have an impact on his or her service on the Court should be curtailed.

No less than with other high-level public servants such as the President and Vice-President, the public has the right to know about the mental and physical health of the nine people who have such a tremendous impact on the lives of everyday Americans.

Yet it seems likely that only an accident of chance allowed us to know as much as we do about Chief Justice Roberts's seizure. Hospital spokespersons in Maine were fairly candid. No doubt, if the seizure and fall had taken place in Washington, D.C. or the Chief Justice's home in suburban Maryland, hospitals would have remained mum, out of respect for the Supreme Court's "rules," and out of concern for federal health privacy laws.

The Diagnosis of Epilepsy and What It Means for Roberts Personally

The day after the seizure episode, neurologists commenting on the news conveyed a consistent message: Because Roberts had a seizure in 1993 and then a second one (albeit 14 years later), his condition meets the diagnostic criteria for epilepsy of unknown origins. In addition, his chances of having a third seizure range from fifty to seventy percent.

However, if Roberts want to help ensure that he won't have another seizure, he can opt to be placed on anti-convulsive medication - for example, Dilantin. Though the medication has some potential physical side effects, it is not know to have any impact on cognitive functioning.

Presumably, Roberts has a Maryland driver's license. If so, when he renews it, Maryland (like most states) will require him to disclose any seizure disorder and to be seizure-free for three months. The Maryland Division of Motor Vehicles may also require proof that Roberts is taking medication.

In 1993, the year of his first seizure, Roberts reportedly had a colleague drive him to work for three months. While Roberts never told the driver the reason he had employed him, it was a wise precaution to have taken, and one that was consistent with Maryland law.

Might Epilepsy Impair Roberts's Work on the High Court?

In his short time on the bench, Chief Justice Roberts has earned high marks for management of the Supreme Court and its docket. He has also been praised for making himself more available to the public than was Chief Justice Rehnquist, frequently speaking at law schools and bar organizations across the country. Will any of this change? The answer is probably no.

Whether or not Roberts takes medication, he should be able to continue to function as usual - unless, of course, he suffers a subsequent seizure that leads to an accident or to further health consequences.

Even if Roberts lost consciousness briefly during this week's seizure (a fact that has not been made public), a few seconds' loss of consciousness causes no long-term damage, though a few minutes' loss of consciousness certainly could. Seizures may lead to some temporary memory loss of the events immediately prior to or after the seizure, but this, too, would not impair general cognitive abilities.

In sum, based on what we now know, Roberts's ability to perform his duties as Chief Justice should not be impaired.

The Secrecy Factor: The Court Insists on Secrecy, Despite Congressional Pressure

But is what we now know all there is to know about this matter?

The Supreme Court operates largely in secret, with only its oral arguments open to the public, and with limited seating at that. For high-profile cases, such as those dealing with abortion or affirmative action, people stand in line overnight for a chance to get in.

Except in unusual cases, oral arguments are not released for use on websites or radio until two weeks after the argument has occurred. The Court has resisted calls for live television cameras to broadcast oral arguments - even though much of the Judiciary committee, Republicans included, has called for them. After all, cameras are allowed for Senate and House hearings; why not for Supreme Court oral arguments?

The Justices' law clerks are now sworn to secrecy about anything they see, do, or hear while at the Court. Rarely is this code of silence broken, and when it is, we are told, justices do even more to impress upon their clerks the importance of secrecy.

All this raises a key question: Why do the Justices want their work enshrouded in mystery when they are doing the public's business? This leads to another question: Why has Congress, with oversight and budgeting authority over the Supreme Court, continued to allow the Court to operate largely in secret?

The Public is Entitled to Know About the Health of Federal Judges, Including Supreme Court Justices

The Constitution created the Supreme Court; the lower federal courts, in contrast, were established by the Congress. The Supreme Court rightly sets it own rules, as head of one of three independent and coordinate branches of our democratic government. Yet that does not mean that the Court should be able to continue its anti-democratic practices that keep the American public in the dark about its inner workings and the health of its members.

The public has a right to know about serious health issues that affect the functioning of a Justice and, in the case of the Chief Justice, of the court itself. Accordingly, we should press our representatives in Congress to insist that this information is disclosed.

If not, we may be confronted with disturbing information only upon Justices' death. For example, only after former Chief Justice William Rehnquist died in 2005 did we learn about serious health problems he had had years earlier. Worse, what we know about Rehnquist's health issues indicates they likely impaired his functioning on the Court.

Rehnquist served as associate justice from 1972 until 1986, when President Reagan elevated him to Chief Justice. At the time of Rehnquist's confirmation hearings for Chief Justice, the Senate Judiciary Committee knew that he had been addicted to painkillers for a back problem; and that, at least on one occasion, he had been checked into a local hospital in a drug-induced state of paranoid delirium.

Yet not one question about this was asked of Rehnquist, either in public or private session. Was this a deal between the Senate and the White House, or between the Committee and the Justice? We will never know.

Later, when Chief Justice Rehnquist became ill with terminal thyroid cancer, everything about his condition was kept under wraps. Reporters and photographers reported sightings of his comings and goings from his home, often with the assistance of others, but the Court would not comment on anything other than his diagnosis.

How often he was in the hospital, and for what, was not disclosed by the Court, based on claims of a right to health privacy. But Justices could either be asked to give up any such right in order to be confirmed, or Congress could craft an exception to federal health privacy laws for such high-level public officials, whose health issues can have dire consequences for the public.

Reports after Rehnquist's death make it clear that the Chief Justice had been a very sick man, and that many - for example, Justice Sandra Day O'Connor -- had expected him to resign because of his illness. Rehnquist chose not to participate in a striking 44 oral arguments in his final term of service. We may never know whether his earlier addiction and later cancer affected his service, but it seems likely.

Why Wasn't Roberts's Seizure Addressed at His Confirmation Hearings?

Senator Arlen Specter was Chair of the Judiciary Committee for both of Roberts's confirmations (in 2003, to sit on the U.S. Court of Appeals for the District of Columbia, and later to sit as Chief Justice.) Specter admits he knew of the 1993 seizure and did not consider it important enough to address at the hearings. Specter's position is plausible, given that at the time, Roberts had had only had one seizure, and thus did not qualify for an epilepsy diagnosis.

Thus, in this case, no great injustice seems to have been done by keeping Roberts's seizure secret. But the situation may be very different in the future, for some other Justice.

Given that Supreme Court Justices (like federal judges generally) enjoy life appointments, it seems reasonable to raise health as an issue. After all, candidates' health is an issue for time-limited terms when the Presidency or Congressional seats are at issue. Yet in those cases, the public has an extended chance to observe the candidates' health status during the campaign. On the Court, protected by a veil of secrecy, a Justice may hide serious health problems affecting his or her functioning indefinitely.

Supreme Court Justices (and federal judges generally) can only be removed through impeachment proceedings, and based upon high crimes and misdemeanors. Currently, no one can force them to step down when physical or cognitive impairments render them unfit for service.

Congress should pass a law requiring federal judges and Supreme Court Justices to disclose serious health issues. In addition, Congress may want to consider a removal law - though some may well argue, perhaps successfully, that a removal law is unconstitutional, contending impeachment is and should remain the exclusive mechanism for removal of Justices. (Note, however, that impeachment is not the exclusive means for removal of Presidents; the succession statute allows the Vice-President to take over in cases of Presidential disability.)

Just as public officials give up most expectations of privacy regarding their finances and personal relationships, so too should they give up the claim of privacy regarding their physical and mental health. The judiciary has long invoked secrecy as an excuse for a failure of accountability. The American people, whose lives and institutions rest in the hands of the Supreme Court, have the right to ensure that that Court's members are, at a bare minimum, fully functioning, healthy people, unimpaired by physical or cognitive deficits.

As for Chief Justice Roberts, absent a change of laws or a penchant by Roberts himself to be honest and open, we may have heard the last of the details about his disorder. Ironically, what little we know came from health care providers far removed from the seat of power who probably never gave a second thought to the propriety of letting the American people know about the accident that had befallen their Chief Justice.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., 2007, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004.

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