High Court justice Michael Kirby has undergone heart by-pass surgery at Sydney’s Royal Prince Alfred Hospital. He returned home to Rose Bay on Tuesday after his operation and is expected to be away from the court for at least a couple more weeks.

Anxious friends have been writing to him concerned that this sudden problem with his ticker might give the Howard government an unexpected opportunity to get another desiccated stick on to the court. Michael McHugh, a Labor appointee from 1989, retires in November and if Kirby was too ill and had to step down, the only surviving Labor government appointment would be Bill Gummow.

We understand that Kirby has been dictating work from his bed, however the workaholic is under strict instructions to ease up. The High Court it is not saying anything officially about this turn of events. This unexpected health problem for the court’s great dissenter shows that volatility can creep into the otherwise predictable process of constitutionally ordained retirements. It’s distressing that the only judge on the court who actually has a heart is now having trouble with it.

Read the report in Justinianhere.