Read more from Slate’s coverage of Sonia Sotomayor’s nomination.
Sonia Sotomayor, the 54-year-old federal judge currently serving on the 2nd Circuit, is poised to become the nation’s first Latina on the Supreme Court—and also the first justice with Type 1 diabetes. Her medical condition has sparked a debate over her suitability to serve on the high court. While Sotomayor’s diabetes is unlikely to affect her work in the near future, the potential for a catastrophic complication—by no means unique to her situation—highlights a serious deficiency in the nation’s oversight of Supreme Court justices.
To be clear, Sotomayor’s condition has no bearing on her current judicial fitness. Almost 50 years ago, her immune system mistakenly attacked and destroyed the parts of her pancreas that secrete insulin. She was lucky to live in modern times; just a century ago, the average child diagnosed with diabetes could expect to live only one year. At that time, researchers discovered that dogs without a pancreas developed diabetes. By 1920, a method for purifying insulin from canine pancreatic tissue was developed. The first patient to receive insulin, a rail-thin 14-year-old named Leonard Thompson, got an injection of three teaspoons of “thick brown muck”—the dog extract—into his buttocks. A miraculous recovery followed, and with regular injections Thompson gained weight and survived for many years. The life expectancy for diabetics treated with insulin soon soared.
Today, commercially available insulin is produced by genetically engineered bacteria, not dogs, but it’s still administered by injection. According to her endocrinologist, Andrew Drexler at UCLA Health System, Sotomayor has taken exquisite care of her blood sugars, which are “better than 98% of diabetics.” The best measure of her diabetes control, a blood compound called hemoglobin A1C, has been consistently found to be at ideal levels.
Recent news for Sotomayor is even better: Studies have shown that people who’ve had well-controlled Type 1 diabetes for more than 50 years (the so-called “golden years cohort”) have surprisingly low risks of the most serious complications, like kidney failure, nerve damage, and heart attacks. The 50-year Harvard-based Medalist study also concluded that patients like Sotomayor “live without severe complications for an extreme duration of the disease.” As a result, Sotomayor’s health prospects are unlikely to be more concerning, for example, than those of Chief Justice John Roberts (who suffered a generalized seizure recently), Ruth Bader Ginsberg (who has battled two cancers), or Clarence Thomas (who is overweight). But, of course, there are no guarantees she’ll stay healthy. Though improbable, she (or another justice) could have a stroke, heart attack, or damage to blood vessels to the eyes, causing blindness.
Consider this scenario: A justice sustains a serious stroke, which results in difficulty with concentration, trouble with spoken and written language, and repeated episodes of confusion. However, even in the face of severely deteriorating mental health, the justice refuses to retire because his successor will be appointed by a president from the other side of the ideological spectrum. Worried, the other justices, save one, secretly band together and strip his powers; they delay hearing any cases in which the ill justice might hold the swing vote. The dissenting justice accuses the rest of unconstitutionally impeaching a fellow justice.
That’s precisely what happened in 1974, when Justice William O. Douglas had a stroke. In a 2000 article titled “Mental Decrepitude on the U.S. Supreme Court,” David Garrow reviewed 15 similar cases of justices who continued to serve on the high court while demented, addicted to drugs, or otherwise mentally incapacitated. Most recently, in 2004 Susan Okie argued in the New England Journal of Medicine that then-Chief Justice William Rehnquist was less-than-forthcoming about his deadly thyroid cancer, which may have compromised his judicial abilities.
The fundamental problem is that the Supreme Court is entirely self-governing, unlike any other governmental body. The president is subject to the 25th Amendment, which provides a clear procedure to remove him from office should he become unable to “discharge the powers and duties” assigned. Since 1980, federal judges must answer to complaints charging them with being too ill to make decisions—but the Supreme Court is immune from that law.
This situation underlies the public’s interest in Sotomayor’s Type 1 diabetes. Because justices are given lifetime tenure with no possibility for review from any governmental bodies (or even their peers), the public tries to anticipate whether a nominee has any remote chance of becoming seriously ill or mentally incompetent. Unfortunately, no doctor or shaman can reliably predict the future perfectly, particularly when it comes to conditions like Type 1 diabetes.
We can’t just parse a nominee’s medical record to predict and avoid situations like Douglas’ disastrous decision to remain on the court. So we should demand an explicit mechanism to review, periodically, the physical and mental competence of sitting Supreme Court justices. Several ideas have been raised, including a constitutional amendment modeled on the 25th Amendment to remove ill justices, a Survivor-style internal procedure in which justices could band together and vote an impaired colleague off the bench, or regularly scheduled confidential medical examinations.
It’s highly unlikely that a future Justice Sotomayor will accidentally overdose herself with insulin, thereby causing severely depressed blood-sugar levels and serious brain damage. But in case that ever does happen, our country should have a plan.