Diabetes, decisions and justice math

By Jessica Gresko and Mark Sherman

Associated Press

WASHINGTON (AP) — Visitors attending Supreme Court arguments surrender their electronics on entering the courtroom. So if something rings, chimes or buzzes, it’s likely the device’s owner is dressed in a black robe.

Last year, a justice’s cellphone went off. But last month, when four electronic pings sounded during an argument, the device was different. It belonged to Justice Sonia Sotomayor and was alerting the justice, who is diabetic, that her blood sugar was urgently low.

The 63-year-old justice has had diabetes since childhood, but the sound was the first public notice that she was using a continuous glucose monitor.

Sotomayor’s use of the device doesn’t indicate a change in her health, experts told The Associated Press, but it does show her embracing a technology that has become more popular with Type 1 diabetics.

In 2013, when Sotomayor did an interview with the American Diabetes Association’s “Diabetes Forecast,” the magazine reported she was not using one. But in recent years the devices, which use sensors inserted under the skin, have become more accurate, said Cleveland Clinic endocrinologist Kevin Pantalone.

Monitors give users continuous information about glucose levels, rather than the snapshot they get from testing their blood with a finger prick. Information from the sensor gets sent every few minutes to a device where a user can see it charted. Most devices sound alarms at low and high glucose levels. Some monitors work with an insulin pump, which continuously delivers insulin.

It’s not clear when Sotomayor began using the technology. She declined comment through a court spokeswoman. But the dinging during arguments on March 21 followed an incident in January where emergency medical personnel treated her at home for symptoms of low blood sugar.

Aaron Kowalski, an expert in diabetes technologies, said an event like that can prompt a person to try a monitor, but even people using the devices can experience low blood sugar that might result in an emergency call. Kowalski, who leads the research and advocacy efforts of JDRF, the Type 1 diabetes research organization, said about 15 percent to 20 percent of Type 1 diabetics now use such a device.


Some Supreme Court math: It takes at least six of the nine justices for the court to consider a case.

When financial conflicts or family relations require more than three justices to step aside, federal law leaves the remaining justices just one option: They affirm the lower court’s decision, without setting a precedent on the issue at hand. That’s also what happens when the court is evenly divided.

But an unusual statement from two justices last Tuesday suggests the court is looking for an end run around the law in one case.

Justices Anthony Kennedy and Clarence Thomas said the court would put off acting on a long-pending appeal resulting from the Tribune Co. bankruptcy and strongly hinted that lower federal courts in New York that previously ruled in the case should take new action.

“I’ve never seen anything like it before,” said Arthur Hellman, an ethics expert at the University of Pittsburgh

As many as seven of the nine justices might have a conflict in the case, according to Fix the Court, a group that advocates for greater transparency at the Supreme Court. Seven justices appear to hold investments in mutual funds that were on the winning side in the lower courts, it said.

The explanation for the statement is that the high court recently ruled in a separate bankruptcy case that raised an issue that’s also part of the Tribune case. The unanimous court, resolving a split between appeals courts, said in effect that the New York-based 2nd U.S. Circuit Court of Appeals got it wrong.

If the justices were now to turn around and affirm the 2nd Circuit’s ruling in the Tribune case, they would be blessing a decision they already had decided was incorrect.


One of the animals that appear in the architecture of the Supreme Court is the tortoise, symbolizing that the court moves slowly but surely. This year, the justices are moving a little more slowly than usual. They have released 18 opinions at a point in the year when the number is generally above 20.

So far, two just decisions split the liberal and conservative justices 5-4, with Justice Anthony Kennedy breaking the tie. Conservatives won both times.

In one case, the justices said that car dealerships’ service advisers are not eligible for overtime pay. They held in the other that prisoners who win civil rights lawsuits against their jailers will have to give more of their money to their lawyers.

There will almost certainly be more 5-4 splits over the next three months before the court starts its summer break. It’s not unusual for the first decisions to reflect consensus, if not unanimity. The easier it is to resolve a case, without the back and forth that dueling opinions can occasion, the faster the court can issue a decision.

That likely won’t be the case for disputes over election redistricting, religious objections to civil rights law, regulation of anti-abortion crisis pregnancy centers, sports betting, union fees and President Donald Trump’s travel ban. Spirited dissents are to be expected in those cases, no matter who wins.

The next chance for opinions will be the week of April 16, when the justices begin the last round of arguments until the fall.