Death and Justice Scalia

It is startling to find that Justice Scalia was frail, and perhaps he himself did not realize that this was so. He seemed so vital and dynamic, often maddeningly so if you didn’t agree with him. (I disagreed with him fairly often, while also admiring his bravura skill in legal argument, but this is not the occasion to revisit any of those disagreements.) A man as devoted to family as he was would not have gone on a solo vacation far from home if he thought he was in failing health. It is good to lead an active and productive and long life up till the very end, as he did, but I hope that he died in his sleep and did not have to know that he was dying alone.

No one knows what awaits us on some other plane after death. Justice Scalia, a devout and traditionalist Catholic, may have died with confidence in life everlasting. What Judaism says about this matter, according to one of my Reconstructionist synagogue’s rabbis, is quite unsatisfactory; that is, apparently the sages just haven’t sorted this one out. In the King James Bible, David says in the Twenty-third Psalm that he “will dwell in the house of the Lord for ever”; in the Reconstructionist prayerbook, he says only that “I shall come to dwell inside the house of The Eternal for a length of days.” 

But Justice Scalia’s death makes crystal clear what awaits us here. Within less than three hours of the news of Scalia’s death reaching the media, Senator McConnell had decided to go public with his objection to President Obama nominating anyone to fill Scalia’s seat, and the Republican candidates for President all concurred in their debate a little later that same evening. In other words, here on earth the living take note of the absence of the deceased, and proceed to business. The New York Times reports that official Washington “paused” yesterday to remember Justice Scalia, and that pause was respectful, but meanwhile life emphatically goes on.

Yet Justice Scalia will be remembered by many, and that certainly counts for something. He was, it seems, a gregarious man who travelled widely and spoke in many venues; his biographer will have a lot to do collecting the stories of what he said and to whom. I happened to meet him twice, once at Columbia Law School and once, more recently, at the banquet of the New York Law School Law Review, at which he was the featured speaker. Before his talk, Teresa and I went to say hello. He didn’t remember having met me before, which I thought was perfectly reasonable. But he went on to surprise us: he said something to the effect that he admired people who devoted their lives to law teaching, and recalled, self-deprecatingly, that he had felt he was growing bored in his last years of teaching, and I think he said that that weakened him as a teacher. Teresa and I felt he was very gracious to us that evening. His son’s remarks at his funeral make clear that Scalia saw himself as an imperfect person, a sinner like everyone else, and perhaps we encountered that humility that night.

I’ve read recently that he believed that he was waging a war of ideas, not a war against people. In his words, “I attack ideas. I don’t attack people.” That’s a distinction that isn’t always easy to adhere to, since it is people who hold ideas, and when ideas are attacked as silly or stupid, those who hold them not unreasonably suspect that they too are being assailed as silly or stupid. Justice Scalia’s dissents were often harsh, and I think that diminished his influence within the Court. But in principle the idea that one can sharply disagree about ideas, yet still respect and like the people with whom one disagrees, is a humane and democratic one. It must also be part of what enabled Justice Scalia to be such good friends with Justice Ginsburg.

I can’t resist adding that the distinction between ideas and those who hold them is also rather South African.  "Play the ball and not the man," Michael Corbett – the last chief justice of the old South Africa and a respected and quite progressive jurist -- urged, and that soccer metaphor made the same point. The more we play the ball, or in other words the more we engage with the ideas and reasoning of those with whom we disagree, the more we implicitly affirm that there are in fact right answers to our problems and that we are engaged in a good-faith effort, along with our adversaries, to find them. The more we affirm that there are right answers, in turn, the more we maintain that the legal (or moral) world rests on, or seeks, objective truth. Scalia certainly believed that there were right and wrong answers to legal questions; many of South Africa’s greatest lawyers and judges have believed that too. The fact that on many points Scalia and his South African counterparts today might have believed in almost diametrically opposite answers doesn’t prove that any of them were wrong in believing that right answers exist.

Cancer is a full-time job

One of the things I’ve learned about having cancer is how much time it takes!

For instance:

·   Cancer treatment itself: so far I’ve had only chemotherapy, which basically consumes a day for each infusion. But some weeks we’ve had as many as three trips into New York City to Sloan-Kettering, all of them necessary, the others being for visits to doctors and for tests.

·   Related medications: there are medicines I take at home for the chemotherapy and cancer side-effects, and sometimes there are medicines for the anti-side-effect medicines’ side-effects, and there are herbal supplements and probiotics; all of these have to be taken when they should be taken.

·   Record-keeping: what medicines did I take and when; what symptoms did I feel and when? My wife Teresa keeps notes, and it’s clear that without them I’d be losing details of what’s going on that might be important. She also keeps notes of what the doctors tell us; I rely on my memory, and while doing that may help me interact with the doctors it also means I forget some details.

·   Exercise: everyone should exercise, because it will improve and prolong your life, but when you have cancer those words have extra punch.

·   Sleep: you need it. So does everybody else, but cancer patients need it more.

·   Mental disciplines, such as meditation or visualization or affirmation: I’m just learning about these in the context of cancer, but they seem promising enough that I want to spend some time on them each day.

·   Research: we’re not physicians but we nevertheless have medical choices to make. And those choices may include not only options in Western medicine, but also in other bodies of knowledge, such as Chinese medicine. Teresa reads much more widely about my disease than I do, but we’re both doing some of this.

·   Diet: Basically cancer requires you to eat healthy. That’s not as easy as it sounds, at least if your habits until your diagnosis weren’t perfect. So, for instance, I’m supposed to have more “cruciferous vegetables” – most of which I usually dislike (e.g. Brussels sprouts). Sweet fruits, which I like, are somewhat discouraged. Sugar in any context is discouraged too. Cold drinks are also problematic; it’s better to drink liquid that’s at room temperature or warmer. Processed meats like hot dogs are out; salad items that are hard to wash are out unless you trust the washing process; soft fried eggs are also out. Alcohol is completely out, though caffeine is still permitted (but I’ve had contradictory advice from Sloan-Kettering physicians about coffee). And this isn’t all. Fortunately for me, Teresa works hard to make healthy meals and energy shakes, and as a result I’ve actually gained weight during chemotherapy.

·   Staying connected with family and friends: I’ve come to understand how important this is, perhaps more clearly than I ever did before.

How does all this fit with the regular work on the job that a cancer patient may still be doing, and that he or she needs to do, both to avoid becoming just a patient and to earn a living (and perhaps the employer-provided health insurance that pays for the cost of treatment)? There must be a lot of answers to that question. For me, the answer really is that Teresa and I are doing the cancer job together. Because we are job-sharing that job, I still have time to be a law professor. And she still has time for her work too, though that hasn’t been simple either.

One day and ten thousand

Is it better to have ten thousand unhappy days in your future, or one happy day? It’s quite possible that the one happy day is what we should choose.

What about one happy day or ten thousand happy days? The answer seems clear, mathematically clear: ten thousand happy days are about ten thousand times better than one happy day. That math isn’t silly; we all would like a long life and happiness, and all of the treatment I’m now doing is meant to achieve every bit of that that I can.

But the math also isn’t as persuasive as it looks. Having a single happy day isn’t automatic. In fact, the more we focus on all the things that might go wrong in our lives, the less likely it is that we’ll enjoy even that single happy day. Insisting that we must have ten thousand happy days is a good way to jeopardize the chance of the first of those days being happy. The fear that we might not get the next 9,999 is itself a source of unhappiness, and something that we need to shed, not because we don’t want those days, but because we mustn’t be trapped by that desire. In the words of Gerald Epstein (whose book, Healing Visualizations: Creating Health Through Imagery (1989), I’m now reading), we need to let go of this sort of “desperation.”

There’s another reason that this is so. Suppose we think about that first happy day. Does the knowledge that it is the first of 10,000 more to come make that day 10,000 times happier? Surely we know the answer is “no”; that one day of happiness is already happy, in and of itself. Or at least this is true to a large extent: again I don’t deny the value, towards today’s happiness, of being able to look forward to tomorrow’s; I just mean to emphasize that today is already, itself, a happy day. If we are happy today, this day is already what we want; it will not become 10 times as happy, or 100 times, because more good days are to come. And if today is unhappy, it does not become happy because other days await.

                                                             

Today’s happiness is a special and complete thing, to be enjoyed – happily – for itself.

Good news

First, the news is good. I’ll say more about it in a moment.

Second, those of you who saw my updated Facebook status already know this news; to those of you who are following just my blog posts, I apologize for keeping you in suspense between my last post and this one.

Now, the details: The CT scan showed that my tumors have shrunk by 10 – 30 %. When we looked at the scan from last Monday, compared to the one Sloan-Kettering had done just before I began chemotherapy, the effect was particularly striking (though probably partly due to the use of different CT scanners): in the earlier scan, the separate tumors looked as if they were reaching out and touching each other, whereas now they look like distinct islands. In between, it’s possible that healthy liver cells are regenerating.

Obviously I still have a long way to go. But the next step, happily, seems pretty clear: more chemotherapy, which in fact I began this past Wednesday a little while after we got this news. The basic strategy is straightforward enough, as I understand it: let’s stick with what’s working and aim to get more good results. With more progress in shrinking the tumors, then there’ll be more flexibility to consider other options that might be even more effective.

Meanwhile, my job is to make this treatment as successful as possible. That means more exercise to keep my strength up; more effort to understand and apply techniques like visualization, affirmation and mindfulness; some herbal supplements that Sloan-Kettering’s complementary medicine physician recommends; and even healthier eating. I’ll have more to say about what’s involved in honoring these good resolutions in coming posts.

Waiting for the results of my CT scan

It’s the day after my CT scan; we don’t know the results yet and won’t learn them until we see the oncologist tomorrow.

It’s an anxious moment, the sort of moment I imagine many, many cancer patients have experienced. Different people must react to these moments differently; I don’t feel upset, but I am certainly intent. The way this moment arrived is this: back at the start of December, 2015 the Sloan-Kettering physicians decided I should have nine weeks of treatment, or, more precisely, three three-week cycles of two weeks when I received intravenous chemotherapy and one week off. Then they would do a CT scan. I’ve now done those nine weeks of treatment, and had the CT scan. I also now understand my illness, and my treatment options, better. But there is a lot I don’t know, and quite a bit that no one knows, about what to do now. So, partly to collect my own thoughts and partly to describe one of the difficult elements of being treated for cancer, I’m going to lay out the possibilities as I understand them now.  

I know that I am feeling quite well, and people – including my oncologist -- tell me I look well. The fact that I’m in as good shape as I am after these weeks of chemotherapy is a good sign, not only that I’m tolerating the chemotherapy well but also that the chemotherapy is having an impact on the underlying cancer. The last time we saw the oncologist, she felt confident enough that she told me I could take on a two-year-long work project. But she also said that of course we wouldn’t know for sure how I was doing until we got the CT scan results.

So now we’re about to learn those results. I wish there weren’t a two-day wait between the scan and the results, and I’ve imagined a phone call ending the suspense, telling me that the scan shows the tumors have almost disappeared. Or a call saying my condition is critical and I’d better get to the hospital right away. Neither has come. That may be a sign that the news, when we get it, will be neither miraculous nor horrifying.

Perhaps the scan will show that my tumors have actually grown. It seems unlikely but I guess it’s not impossible. In that case, I’ll have to attribute my feeling good not to any actual progress against the disease but to the many medications I’m taking (and to my wife’s excellent power shakes, with which I begin every day). And then we’ll need to figure out what other treatment possibilities there are (I’ll get to these in a moment).

Perhaps the scan will show that my tumors have neither grown nor shrunk. Hearing that would certainly be better than learning they’ve grown. My guess is that they were growing before I started the chemotherapy, so in fact this news would point to a clear victory for the treatment, namely that it halted their growth. Since I am feeling relatively well, I guess I could go on feeling this way indefinitely, and perhaps one way to do that would be to continue with the chemotherapy just as I’ve done over the past nine weeks. (There may be other ways too, but again I’ll get to these in a bit.) That would work as long as the chemotherapy remains effective, and as long as the side-effects of the chemotherapy don’t multiply.

Perhaps the scan will show that my tumors have shrunk. “Shrunk” seems like a clear enough word, by the way, but I’m not sure it is. I’ve seen a study, from physicians at Sloan-Kettering, in which it appeared that a less-than-20 % decrease in tumors did not count as a “response” to the treatment. That might mean that some amount of shrinkage doesn’t definitively indicate an effect of the chemotherapy – though it may also be the case that even a little shrinkage may correlate with a better prognosis.

Anyway, if my tumors have shrunk, that’s great – but it also opens up a set of questions we haven’t had to wrestle with up till now. My sense is that when my chemotherapy began, the Sloan-Kettering physicians felt there really wasn’t much alternative. I needed treatment right away, and this chemotherapy was the clear treatment of choice (the same study calls it the “gold standard”).

But if the tumors have shrunk, I may have choices. For one thing, I may be well enough that I have time for steps that would initially delay treatment for the sake of delivering better treatment later. That’s a bit opaque: concretely, what I mean is that, provided the cancer has not spread beyond my liver, I might then be a good candidate for a clinical trial that’s ongoing at Sloan-Kettering. In this trial, they implant a pump beneath the skin of my abdomen and connect that pump to an artery that leads directly to the liver; then they fill the pump with chemotherapy medication by injection, and the pump delivers the medication straight to the liver. To get this started entails major surgery, and I couldn’t receive any chemotherapy until I’d recovered from the surgery itself – but now I may have some time in which to do that. The study I’ve referred to, just published in the last month, reports data suggesting that this approach is considerably more effective, on average, than the treatment I’ve had so far.

But (there’s always a but, or in fact several) it’s not effective in every case, and even when it’s effective it’s not always as effective as the treatment I’ve been having so far. In addition, while the clinical trial seems to attack the cancer in the liver more powerfully than the intravenous treatment I’ve been receiving, my impression is that the intravenous treatment probably does more to prevent cancer developing somewhere else in my system – precisely because the intravenous treatment, unlike the clinical trial treatment, isn’t aimed directly and solely at the liver. The intravenous chemotherapy would actually continue along with the clinical trial, but the problem with that is that my oncologist says that patients receiving the clinical trial chemotherapy may not be able to handle as much of the intravenous chemotherapy as those who are on only the intravenous chemotherapy can. Also, it turns out that the circulatory system in the abdomen varies a lot from person to person, and in my case the artery to the liver is smaller than usual, a fact that increases the difficulty of successfully hooking the pump up and keeping it in place.  So judging whether I’m best suited for this clinical trial or for more of the solely intravenous treatment is quite a delicate matter.

And then there are other questions. If the tumors have shrunk enough, should the possibility of liver surgery (called a resection) come into the picture? Are there genetically-based treatments that might work for me (something Sloan-Kettering is already looking into)? Jimmy Carter’s brain cancer was treated with an immunotherapy drug called Keytruda; should I be trying to get this drug? And are there other clinical trials under way that might be more effective? Should I also explore possible treatments from Chinese medicine? None of these options was relevant while Sloan-Kettering was bringing me back from the acute difficulty I now realize I faced at the beginning of December. But now all these options may need to be considered – depending, of course, on just what the results turn out to be tomorrow.

So this is, as I said, an anxious moment. It’s a hopeful moment too, and I am very happy to have this renewed hope, but oddly enough this moment is more anxious because it is also hopeful.