Justice Ginsburg seemed to take particular interest in a case brought by the Navajo Nation claiming that the federal government had been complicit in a scheme to allow a private company to underpay for coal on tribal lands.
The case, United States v. Navajo Nation, No. 07-1410, was making its second appearance before the court. Justice Ginsburg wrote the majority opinion ruling against the tribe in 2003, and she asked forceful questions suggesting that she saw no reason to revisit her conclusions.
Carter G. Phillips, the tribe’s lawyer, was just starting his argument when Justice Ginsburg asked the first question. Quoting broad language from her original decision, she suggested that it covered the newer case, too.
“Do you think that was just carelessness on the court’s part?” she asked of the expansive language she had used, including the phrase “any relevant statute or regulation.”
“Oh, I would never assume that, Justice Ginsburg,” Mr. Phillips said in a light tone. Justice Ginsburg reacted with a broad smile.
A few minutes later, she quoted a second passage along similar lines, and Mr. Phillips again deferred to her. “Obviously, Justice Ginsburg, you are in a much better position to judge what was intended here,” he said, before going on to say that this case involved a different federal statute than the 2003 one.
Justice Ginsburg also asked the first question in the second argument of the day. That case, Rivera v. Illinois, No. 07-9995, concerned what should follow from a judge’s erroneous denial of a criminal defendant’s attempt to exclude a potential juror by using a peremptory strike — the kind that does not ordinarily require giving a reason.
“Are you equating this with a biased judge?” Justice Ginsburg asked James K. Leven, the lawyer for the defendant, Michael Rivera, who was convicted of murder and sentenced to 85 years in prison. The Illinois Supreme Court ruled that the trial judge had made a mistake in seating the juror Mr. Rivera had sought to exclude. But the court said the mistake did not require that his conviction be overturned.
Justice Ginsburg and several other justices appeared skeptical of the defendant’s argument that the judge’s mistake should require automatic reversal.
“It seems to me,” Justice Ginsburg said, “that a juror who is perfectly qualified, who it is conceded could not have been dismissed for cause, is quite a different matter than a judge who has taken a bribe or who has a monetary stake in the case.” Here, she said, “it was just a judge who was over-exuberant in denying a peremptory challenge.”
Justice Ginsburg, 75, had surgery on Feb 5. According to a statement from the court about a week later, the one-centimeter lesion that initially prompted the surgery proved benign. But in the course of the operation an even smaller tumor was found, and this one was malignant.
Dr. Otis W. Brawley, the chief medical officer of the American Cancer Society, said Justice Ginsburg might have been fortunate in that her cancer was found at an early stage and had not spread beyond her pancreas.
“This is frequently a very difficult disease,” Dr. Brawley said, “but the outlook for someone who has early stage pancreatic cancer can be very good.”
In another development on Monday, the court agreed to hear Salazar v. Buono, No. 08-472, which concerns an eight-foot-tall cross honoring fallen service members in the Mojave National Preserve in California.
After lower courts told the federal government to stop displaying the cross, Congress ordered the land on which it sits to be transferred to a private group, resulting in what an appeals court called “a little donut hole of land with a cross in the midst of a vast federal preserve.”
The Supreme Court will consider what sort of injury a plaintiff must show to establish standing to sue over the cross and whether the transfer to the private group was proper.
Senator Apologizes to Ginsburg
FRANKFORT, Ky. (AP) — Senator Jim Bunning apologized Monday to Justice Ginsburg for saying he believed she could die within a year from pancreatic cancer.
Mr. Bunning, Republican of Kentucky, said in a speech Saturday that Justice Ginsburg had “bad cancer — the kind that you don’t get better from,” The Courier-Journal of Louisville reported.
“Even though she was operated on, usually, nine months is the longest that anybody would live” with pancreatic cancer, he said.
In a statement on Monday, Mr. Bunning, 77, said he apologized if his comments offended Justice Ginsburg. “That certainly was not my intent,” he said.