We Now Know Whether RBG Will Make It To The State Of The Union

Not all members of the Supreme Court will be at President Donald Trump's State of the Union address on Tuesday evening. Just hours ahead of the speech, The Guardian reports that Ruth Bader Ginsburg will skip the SOTU again this year amid her recovery from lung cancer surgery in December.

NPR reports that only four Supreme Court justices will be at the SOTU this year: Justices Elena Kagan, Brett Kavanaugh, Neil Gorsuch, and Chief Justice John Roberts. In 2018, several other justices also declined to attend Trump's speech, and USA Today reports that it's fairly normal for members to be absent. Roberts told The ABA Journal in 2010 that justices are not required to go to the address. "I think that's something that's up to each individual member of the court," he said.

Now, this isn't the first time that Ginsburg has missed a State of the Union. She attended all of President Barack Obama's addresses, per USA Today (though she appeared to have dozed off at some of them), but skipped Trump's first address last year.

The court's attendance at the SOTU, though sometimes reduced, is a tradition. Political scientists Ryan Williams and Jacob Smith argued in a 2017 issue of The Justice System Journal that justices typically choose to go to the address because "the Court thinks attending the State of the Union can help to preserve its long-term legitimacy." Williams and Smith wrote that the optics of the event — the justices sit apart from Congress wearing robes and don't clap or stand like the rest of the audience — help reinforce a public perception of the court as apolitical.

Even though Ginsburg also missed Trump's first State of the Union, it was uncertain whether her absence on Tuesday was related to her ongoing recovery from a surgery last year. In November, a fall in her Supreme Court office fractured three of Ginsburg's ribs. It was discovered at the hospital that she also had malignant cancer in her lung; after undergoing surgery to take out the nodules, Ginsburg was released from the hospital on Dec. 25.

It's been unclear since then how soon Ginsburg would be able to return to the bench. She went back to work almost immediately from her hospital bed, but soon after was forced to miss oral arguments in court for the first time in her quarter-century Supreme Court tenure. Ginsburg was absent for a second week before the court went on recess. It will reconvene on Feb. 19, according to Reuters, and preeminent cancer surgeons have suggested to CNBC that they expect Ginsburg to return to the bench by that time.

Ginsburg has also been forced to cancel at least one major event during her recuperation period. Still, a court spokesperson has assured the public that Ginsburg is recovering well and needs no further treatment. When the RBG filmmakers called the justice on Jan. 22, they reported that she sounded "strong and cheerful" and that she was "continuing to stay on top of work."

Her recent health scares have caused some pundits to renew calls for term limits on the Supreme Court, while others have continued to argue that lifelong tenures are crucial for the court to be effective. Meanwhile, Ginsburg — for now — seems able to continue working with the same intellectual acumen that has defined her career. Although she has been absent from the bench and didn't attend the State of the Union, she's reportedly still hard at work. This persistence shows yet again that she believes her time on the court is far from over.