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When it was announced on Sunday that he’d been admitted to the hospital, it sounded like no big deal. Or as close to “no big deal” as it gets when a 73-year-old is hospitalized, at least. “He underwent tests, was diagnosed with an infection, and is being treated with intravenous antibiotics,” the Court’s press office said. “His symptoms are abating, he is resting comfortably, and he expects to be released from the hospital in a day or two.”

Released in a “day or two” should have meant released by Tuesday evening. Last night, some on social media noticed that the Court hadn’t made any announcement yet.

Today the AP followed up by asking the press office what his status is. This is concerning:

The Supreme Court declined to say Wednesday whether 73-year-old Justice Clarence Thomas remains in the hospital, though he had been expected to be released by Tuesday evening…

The court heard arguments Wednesday morning and Chief Justice John Roberts said, as he has for the past two days, that while Thomas was not present he would participate in the case by reviewing the arguments’ transcript and briefs. Roberts said Thomas was “unable to be present today” without explanation.

Thomas did not have COVID-19 and his infection was being treated with intravenous antibiotics, the court has said.

If he’s been released, why wouldn’t they just say so?

One would assume he doesn’t have COVID or the flu, which are viruses, if in fact he’s being treated with antibiotics. There’s an obvious possibility, says Dr. Jeremy Faust:

Others are less sure:

I’m going to assume the Court wouldn’t flatly lie to us about him not having COVID if he does. Bacterial pneumonia would be plenty serious in its own right, of course. As for how likely it is that someone’s condition might take a turn after their symptoms had already begun to “abate,” I invite the medical professionals among us to weigh in.

A vacancy on the Court is always chaotic but it would be especially chaotic now. We’re in an election year, less than eight months out from a likely Republican takeover of the Senate. Democrats would move heaven and earth to fill Thomas’s seat before then if they get the chance. Normally I’d say their odds of doing so are iffy since everything depends on Joe Manchin’s willingness to go along with the team. But if Biden decided to dip back into the pool of candidates he vetted for Stephen Breyer’s seat, he might have a trump card. Yesterday, at the opening of Ketanji Brown Jackson’s confirmation hearing, Lindsey Graham said this:

South Carolina’s senior senator said Monday he’s still upset that President Joe Biden did not nominate federal Judge Michelle Childs to the U.S. Supreme Court and blamed liberal groups for keeping her from getting the high court nod…

Graham repeated Monday that had Childs been the nominee she would have received at least 60 votes in the Senate and had his support and that of another South Carolinan, Sen. Tim Scott.

Manchin reportedly also wanted Childs for the Breyer vacancy. If Thomas were to leave the Court, Biden could nominate her for his seat and dare Graham and Manchin to bork her in order to hold the seat open until after the midterms. Graham might, since replacing Thomas with a Democrat would upend the ideological balance of power on the Court. But as long as the White House can keep centrist Democrats like Manchin on board, they could get Childs confirmed.

A Thomas vacancy would also throw the fate of Roe v. Wade into deeper uncertainty. It may be that the justices have already cast their votes in the Dobbs case and the opinions are being written, set for publication in late June. If Thomas left the Court before then and were replaced by Childs, though, would the Court opt to re-hear the case with its new panel? If it did, John Roberts would be the presumptive deciding vote on a 5-4 Court. Who’s confident that he’d vote to overturn Roe in those circumstances?

Hopefully this is all much ado about nothing and Thomas just needs another day or two of recuperation before rejoining SCOTUS. Hope for the best.

Source: This post first appeared on HotAir

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