This story originally ran Wednesday. On Friday, March 25, the Supreme Court’s public information office announced that Justice Clarence Thomas had been discharged from the hospital earlier that day.
As Senate confirmation hearings continued Wednesday for Judge Ketanji Brown Jackson’s nomination to the Supreme Court, one of the current justices, Clarence Thomas, had been hospitalized with an unspecified infection.
On Wednesday afternoon — the day after the court had previously said Thomas would be released from the hospital — the court’s public information office told Grid that it had “no update” on Thomas or his condition.
“The public has a right to know if all nine of its justices are up to the job,” Gabe Roth, the executive director of Fix the Court, told Grid. Fix the Court is a nonprofit organization dedicated to encouraging transparency and accountability at the Supreme Court.
Thomas’ hospitalization — and the court’s treatment of it — highlights the lack of that transparency at the Supreme Court, particularly when it comes to the justices’ health.
Thomas, according to a Sunday evening news release, was hospitalized on Friday, March 18, meaning two days passed before the public was informed. The release stated that “flu-like symptoms” had led to Thomas’ hospitalization and that he had been diagnosed with an infection; it added that his symptoms were “abating” and that “he expects to be released from the hospital in a day or two.”
In a signal of why the information was made public at that time, the final sentence of the release noted that Thomas would not be joining oral arguments and would participate in cases “for which he is not present” by relying on the briefs and oral argument records. In other words, Thomas wasn’t going to be on the bench at 10 the next morning, so the public was informed about the hospitalization before questions arose about his absence.
The Supreme Court held arguments on Monday, Tuesday and Wednesday; Thomas participated in none of them. The Associated Press reported that Chief Justice John Roberts said Wednesday that Thomas was “unable to be present today” but did not give further explanation.
That afternoon, the Supreme Court issued an opinion tossing out Wisconsin’s state legislative maps. That opinion was issued “per curiam,” meaning “for the court” and unsigned. Thomas wrote no opinion in the decision, nor did he note his vote publicly. He did, apparently, participate in the decision, as it would have been noted, under ordinary Supreme Court practices, had he not done so.
By late Wednesday afternoon, the court had not provided any further information about Thomas’s health — not even whether he remained hospitalized.
“I think it’s very concerning,” Roth told Grid. “The court seemed to downplay its seriousness in the one news release it sent out, saying that Thomas would be out and released in one or two days, and he’s still absent from oral argument. Either he’s taken a turn, or the illness is more serious than the court is letting on. If it’s the latter, it’s completely consistent with the way the court has dealt with other health issues in the past.”
Roth noted the weekslong delay in the public’s learning that Roberts had been hospitalized overnight following a fall in 2020. The Supreme Court shared that information only after an inquiry from the Washington Post’s Robert Barnes. This, despite the fact that Roberts had told another reporter, the National Law Journal’s Tony Mauro, in 2016 that the court’s public information office would “continue to provide health information when a need to inform the public arises.”
This sort of treatment of health issues at the court is not new and is, in some ways, a result of the unique organization of the Supreme Court in contrast with other branches. While the chief justice is the administrative head of the court, neither he nor anyone else apart from the justice in question would generally be responsible for authorizing any statements about a justice’s health.
In the past, updates about justices’ health have come with delay and significant vagueness. The regular updates regarding then-Justice Ruth Bader Ginsburg’s recurring cancer and health status were an exception to the general rule of secrecy or, at least, delayed disclosure of justices’ health issues, as NPR’s Nina Totenberg reported at the time.
Roth did note that there’s “a long tradition” of justices who miss arguments participating in those cases by way of reading the briefs and reviewing the arguments, a function of the fact that, unlike with lower courts, no one else can substitute for any of the justices if they are unable to participate.
To that end, Roth pointed to one of the most extreme examples of the court addressing serious illness. On Dec. 31, 1974, Justice William O. Douglas had a stroke, but he did not resign from the court until nearly a year later. In the interim, despite his decision to continue participating in cases, several of his fellow justices asserted that his vote would not be allowed to create a 5-to-4 majority. While many — including at least one of his fellow justices at the time — have questioned whether the justices, constitutionally, could take such a step to prevent a sitting justice’s vote from being counted, the secrecy of the court and its internal functions allowed for the threat.
In the past 15 years, however, there have been growing efforts to encourage more transparency from the court. In addition to more aggressive media reporting on the justices’ health, lawmakers have also been paying more attention.
Roth pointed to multiple bills on the subject in past years, including a House bill requiring periodic health updates about older judges and a Senate proposal to allow retired justices to return to the court whenever a justice was recused and a majority of the remaining justices voted to allow the retired justice to sit. He also noted a current House bill from Rep. Ro Khanna, D-Calif., that sets term limits for justices also includes provisions that would allow retired justices to sit in certain circumstances.
None of the past proposals were approved, and the current measure has little to no chance of passage, either, but the existence of such bills, Roth noted, goes to show both that there are things that could be done to address health issues regarding the justices and that at least some members of Congress are and have been looking at how to address them.
As the Senate Judiciary Committee members questioned Jackson, however, none of those bills were law, the possibility of such secrecy remained, and the health status of one of her would-be colleagues remained unclear.
No senators asked Jackson about how, if confirmed, she would respond to any health concerns she might face on the bench and whether she would permit the court to make such developments public.