What happens when a Supreme Court Justice is not dead but
because of some medical disability can no longer discharge the duties demanded
of the Office of Supreme Court Justice? Well,
that already happened, it happened to Justice William O. Douglas. Douglas had a stroke in 1974 at the age of 76,
and refused to retire despite a resulting disability. Seven of the other justices voted to defer to
the next term any decision in which Douglas’ vote would make the difference. Douglas did not retire for almost a year
despite urging from other justices. After retirement Justice William O. Douglas
tried to serve in a senior judicial status, but the other justices refused to
cooperate. Douglas’ long and
distinguished career was partially marred by his hanging on when he could no
longer function effectively. Yet there
was nothing the President, Congress, or other justices could do to force him to
retire.
If we ever reformed the
Supreme Court by constitutional amendment it would be a good thing to add some
provision for dealing with this kind of situation as now we are faced with
similar circumstances pondering the ill health and associated concerns about
Ruth Bader Ginsburg. What that provision should be is up for debate.
What does the United States Constitution say about retirement
for U.S. Supreme Court Justices? Retirement
at this point is voluntary, there is no maximum age to retire (forced retirement
is mandatory in all other branches of Government Service). Supreme Court associate justices who decide to retire at age 70, after 10 years
on the job, or at age 65 with 15 years of service is eligible to receive their
full highest salary – usually their salary at retirement for the rest of their
lives. In return for this lifetime
pension, judges who retire in relatively good health with no disabilities are
required to remain active in the legal community, performing a minimum
specified amount of judicial obligations every year.
Retirement for Supreme Court justices at full salary in the
Judiciary Act of 1869, the same law that settled the number of justices at
nine. Congress felt that since Supreme Court justices, like all federal judges,
are well paid and appointed for life; a lifetime pension at full salary would
encourage judges to retire rather than attempting to serve during extended
periods of poor health and potential senility. Indeed, fear of death and
decreased mental capacity are often cited as motivating factors in judges'
decisions to retire.
While bodies may wither, or fall ill, with age, the mind can
remain good. Mental incapacity is the problem. Good health is not always easy to discern,
even in younger justices, and no institution in government is more secretive
than the Supreme Court, particularly about the health of the justices.
While media coverage of the
Supreme Court is greater than it has ever been, making it far more difficult
for justices to keep secret their ill heath, often the reporters who cover the
Court do not report these facts even if they learn them. They want to remain in the Justices' good
graces.
The key here is Congress. If the Congress flexed a little muscle, it could
no doubt get the Supreme Court to voluntarily provide all justices' health
information on a regular basis to a select joint committee of the House and
Senate. Such an informal check on the
Court could give the public some assurances that law clerks are not running an
incapacitated justice's office. Besides, editorials urging that a particular
Justice should resign might have some persuasive effect — for the justice would
know from them that his or her remaining on the Court would tarnish the court’s
image.
Ruth Bader Ginsburg is currently 84 years old and has set
upon the United States Supreme Court as Associate Justice since appointed by
President Clinton appointed her Associate Justice in 1993. Ginsburg has served well past her requirement
to make her eligible to draw full time retirement form the bench with only the proviso
that she maintains a minimum of activity in the legal community. I say it is up to us to make a decision to
force congress to make a constitutional amendment for mandatory retirement of
US Supreme Court Justices or force the US Supreme Court to police their own.
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