< Justice Ginsburg Appears Strong In First Appearance At Supreme Court This Year

AUDIE CORNISH, HOST:

Justice Ruth Bader Ginsburg has been missing from the Supreme Court since the beginning of the year after surgery for lung cancer. She was absent for six days of arguments in January, the first she's missed in her quarter century at the court. Today, she was back. And in the court was our very own Nina Totenberg, NPR's legal affairs correspondent. Welcome to the studio, Nina.

NINA TOTENBERG, BYLINE: Hi, Audie.

CORNISH: You were there; so was Justice Ginsburg. How did she look and sound?

TOTENBERG: She was the first justice to ask a question. She sounded strong. She asked about three more questions in the course of argument that was heard this morning. When the justices got up to leave, she was slower than the rest. And the chief seemed to be ready to help her down the stairs, but no, no. She went on her own.

CORNISH: Can you tell us what the case was about?

TOTENBERG: (Laughter) You really don't want to know. It's a patent case. As Justice Alito put it, it's premised on the, quote, "possible fiction that Congress actually gave a second thought to the issue that's before us."

And I might add that nobody in the press corps would have been there but for the fact that Ruth Bader Ginsburg was returning to the bench. Although, she's been continuing to do her work from home.

CORNISH: Right. Do we know how she's doing, and is she going to, say, the Academy Awards, right? The movie "RBG" has been nominated for an Oscar.

TOTENBERG: She's doing well, walking more than a mile a day. She's back with her trainer a couple of times a week and has continued to do all the work of the court. Indeed, on the day of her surgery, I have learned, she voted in a case from the ICU.

Now, as to the Academy Awards, no, she's not going. She has to be in court the next day in Washington. But, Audie, I'm going.

CORNISH: OK. (Laughter).

TOTENBERG: I was in the movie a fair amount. So I'm cutting class to go.

CORNISH: All right. We're going to watch for that.

Another justice made some news today. Justice Clarence Thomas said that the court should revisit and reverse a landmark freedom of speech and press case. Can you tell us more about that?

TOTENBERG: You know, Thomas does this periodically. He stakes out a position that would reverse decades - sometimes even more than a century - of Supreme Court precedent. This time, his target was New York Times v. Sullivan, in which the court in 1964 ruled unanimously that public figures and those who thrust themselves into the public view cannot sue for libel or slander unless they can show that the media outlet that disseminated the offending material knew it was false or published with reckless disregard for the truth.

So today when the Supreme Court declined to hear an appeal from one of these cases that had been thrown out by the lower court, Thomas - Thomas used the occasion to write a 14-page treatise arguing that New York Times v. Sullivan was wrongly decided, that it does not comport with the original meaning of the Constitution and that it should be overruled so that public figures can more easily sue media entities for libel or individuals for defamation.

CORNISH: I want to go back to Justice Thomas for a second because you were writing today about rumors that he might retire.

TOTENBERG: The theory, you know, being bandied about in Washington legal circles is that Thomas, who is 70, might retire at the end of this term to give President Trump a third nomination to the court, someone just as conservative as Thomas but much younger and able to serve for another 30 years or so. The oxygen for the theory is that the justice and his wife have dined privately at the White House with the Trumps and that there have been other meetings with Trump.

You know, Audie, though, I have my doubts about this theory. I don't know why Thomas would step down now when, for the first time since his appointment in 1991, he has real, ideological influence on the court and soul mates. So instead of being a radical maverick, he has a chance of prevailing.

CORNISH: That's NPR's Nina Totenberg. Nina, thanks so much.

TOTENBERG: Thank you, Audie.

(SOUNDBITE OF NIGHTMARES OF WAX'S "BROTHERS ON THE SLIDE (DUB MIX)")

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