Justice Ruth Bader Ginsburg speaking in September in Washington. Photo: Diego M. Radzinschi / ALM

U.S. Supreme Court Justice Ruth Bader Ginsburg, who recently disclosed a new fight with cancer, insists she will continue her 27-year tenure "as long as I can do the job full steam."

There is no reason to suggest that Ginsburg will renege on that pledge. And in every past health issue she has had, Ginsburg has barely missed an argument and has kept up with her workload.

"As long as she can mentally understand the cases and cast votes, then she is fully discharging her duties," said Artemus Ward, a political scientist and author of the book "Deciding to Leave," about justices' departures from the court. "Anyone who suggests that physical decline is somehow grounds for departure is incorrect as a historical matter. Nothing can force her to leave the court short of impeachment and death."

Ward pointed to justices such as Hugo Black and John Marshall Harlan II who "fully participated in the past via telephone from distant lands and from their nearby hospital beds."

Ginsburg did the same in May when she participated in oral argument via teleconference from Johns Hopkins Hospital. All justices were participating remotely during that period because the court was shut down in light of the pandemic.

David Garrow, author of an extensive 2000 article about mental decrepitude and incapacity of Supreme Court justices, documented that debilitated justices in the past have worked from home or even hospitals for extended periods.

Especially since the upcoming term of the court may keep the justices home because of the pandemic as it did at the tail end of last term, Garrow said Ginsburg "may not have to be at the court" to do her work.

One of Garrow's case studies of extended disability involved Justice Frank Murphy, who served on the court from 1940 to 1949. He was hospitalized several times in 1946 and 1947, and in 1948 was unable to be present at the court's October term until December. He was addicted to painkillers, a circumstance that got worse and more visible over time.

Garrow said Murphy often "deputized" fellow Justice Wiley Rutledge to cast his votes, though Murphy's biographer wrote that "there is no indication that Murphy's excessive use of drugs during his last two terms on the court materially affected his performance as a justice. None of the available evidence suggests that he behaved erratically in public during this period."

Justice William O. Douglas is a better-known example of justices who stayed on in spite of ill health. Douglas suffered a stroke in December 1974 at age 76. He did not return to the court until March 24, 1975. He met with reporters the next day, and they reported he was clearly impaired by the stroke. He said he would listen to all the argument tapes he had missed, but his health got worse.

Friends and others urged him to retire, but he persisted, sometimes dozing off as he attended arguments. His colleagues resolved not to have any decision hinge on Douglas' vote or to assign him an opinion or to join an opinion he wrote.

But one justice, Byron White, balked at the moves to block Douglas, illustrating that expelling a justice is not easy to do. White acknowledged in a letter to his colleagues that it would have been wise for Douglas to retire. But he said it was not up to the justices to determine Douglas' fate, because the Constitution gives only Congress the power of removing justices, through the impeachment power.

White added that Douglas "listens to oral arguments, appears in conference and casts his vote on argued cases. He thus not only asserts his own competence to sit but has not suggested that he is planning to retire."

Earlier this week, Ginsburg underwent what the court described as a "minimally invasive non-surgical procedure" at Memorial Sloan Kettering Cancer Center in New York. The procedure was to "revise a bile duct stent." The court said in a statement earlier: "The justice is resting comfortably and expects to be released from the hospital by the end of the week."

She was released from the hospital Friday, a court spokesperson said. Ginsburg was home and doing well.