{"id":54456,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/when-supreme-court-justices-refuse-to-retire.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"when-supreme-court-justices-refuse-to-retire","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/when-supreme-court-justices-refuse-to-retire.html","title":{"rendered":"When Supreme Court Justices Refuse To Retire"},"content":{"rendered":"\n
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WHEN SUPREME COURT JUSTICES REFUSE TO RETIRE: Why We Need More Media Coverage, And A Constitutional Amendment <\/h1><\/td>\n <\/tr>\n

By JOHN DEAN<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Jul. 20, 2001<\/td>\n\n <\/tr>\n <\/table>\n

\tAs the past term of the Supreme Court ended, there was wide speculation \nthat one or more of the aging justices would retire. None did. <\/p>\n

Justices can retire with full salary. Those wishing and able to remain active \ncan sit on any of the U.S. Court of Appeals, serving as a senior appellate judge. \nAnd many justices have done just this \u0097 long before their health or advanced \nyears might become a factor in their performance of their judicial functions.<\/p>\nmost difficult they face on the bench. They stay on the Court much longer than \nthey should. As Chief Justice Charles Evans Hughes once observed of aging justices, \nthe problem is “not illness but decrepitude.”\n

While bodies may wither, or fall ill, with age, the mind can remain good. \nMental incapacity is the problem. And it is not always easy to discern, even in \nyounger justices. No institution in government is more secretive than the Supreme \nCourt, particularly about the health of the justices. <\/p>\n

Moreover, while media coverage of the Supreme Court is greater than it has \never been, making it far more difficult for justices to keep secret their ill \nheath, often the reporters who cover the Court don’t report these facts even if \nthey learn them. They want to remain in the Justices’ good graces. <\/p>\n

This practice should change. In addition, a constitutional amendment imposing \na mandatory retirement age on Justices should be seriously considered. <\/p>\n \n<\/b>

Problems Are Often Hidden<\/p>\n \n

Justices’ mental problems are all too easily hidden. While on the bench, Justice \nFrank Murphy, who served from 1940-49, had a serious drug problem (Demerol addiction), \nand was seeing a psychoanalyst. One biographer reports that at one point, he was \nillegally purchasing drugs twice a day. Law clerks, and other justices, were \ndeciding his votes. No one outside the Court knew.<\/span> <\/p>\n<\/span>\n\n \n \n
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Similarly, only family and colleagues knew that Justice Charles E. Whittaker, \nwho served from 1957-62, was suffering from years of depression, often so severe \nthat he could not make decisions. This disability forced him to leave the Court, \nbut the truth was slow in surfacing.<\/p>\n

Long before Associate Justice William Rehnquist was nominated to be chief \njustice, he had a serious health issue that may have impaired his decisionmaking. \nFor nine years, from 1972-81, the Capitol physician, Freeman H. Cary, had prescribed \na powerful hypnotic medication, Placidyl, because of Rehnquist’s chronic lower \nback pain. <\/p>\n

\n\n This powerful controlled substance is prescribed for relief from insomnia. \nIts known side effects include “confused thinking, impaired memory,” and even \n“delirium.” Rehnquist started at 500 milligrams a day, but the dose soon tripled, \nto 1500 milligrams a day. <\/p>\n

Strikingly, like Murphy’s and Whittaker’s before him, Rehnquist’s possible mental \nhealth issue received little notice \u0097 despite the burgeoning and diversification \nof the media in the intervening years.<\/p>\n \n<\/b> \n

By 1981, journalists covering the Supreme Court did notice that the highly \narticulate Rehnquist was having increasing difficulty asking questions from the \nbench. Reporters who engaged in private conversations with Rehnquist noted that \nhe clearly had “significant difficulty talking.” But none wrote about it.<\/p>\n

\tIt was not until Justice Rehnquist ended up in the hospital in January \n1982, and it was learned that the Justice had been “seeing things and hearing \nthings that other people didn’t see or hear,” did reporters say anything. <\/p>\n

\tEven when he was elevated to chief justice, Rehnquist’s health records \nremained sealed during his confirmation hearings. More than this, the Senate Judiciary \nCommittee agreed in advance not to ask him any questions about his health. He \ndid testify about the cloak of secrecy regarding the health of justices, but not \nabout his own condition.<\/p>\n

\t“I think judges have much more of a tendency to ‘pull the wagons around’ \nor something like that \u0085 particularly on our Court, where there are only \nnine seats, the health of every individual Justice is an endless subject of speculation,” \nRehnquist told the Senate. As chief justice he has continued to keep his, and \nthe other justices’, health well hidden. We can only assume that Rehnquist is \nin better mental health than at the time of his 1982 hospitalization.<\/p>\n \n<\/b>

Law Clerks Fill The Void<\/p>\n \n

How do justices with mental health issues function? Law clerks and long-time \nsecretaries can do a remarkable job of covering up for an ailing justice, keeping \nthe office processing the constant flow of Court papers. More than one justice, \nin fact, has performed his or her judicial functions while in the hospital, occasionally \nfor extended periods. How well they perform is another matter.<\/p>\n

David Atkinson, a professor of political science, has undertaken one of the \nfew studies of the way justices exit from the Court. In his 1999 book Leaving \nThe Bench: Supreme Court Justices At The End, <\/i> professor Atkinson reviewed \ndepartures from the Supreme Court from its inception to the last person to leave: \nJustice Blackmun, who departed the Court in 1994.<\/p>\n

Atkinson found that “[i]n recent years the justices have delegated more and \nmore of their work to their law clerks. This increase in the use of staff affects, \nof course, all of the justices, not merely those who are infirm or who have diminished \ncapabilities.” Accordingly, he found that illness or incapacitation does not lessen \nproductivity by the justices’ offices \u0097 though it may, of course, affect \nthe quality of decisionmaking.<\/p>\n

Apparently so long as the paper keeps flowing, other justices do not complain. \nTo the contrary, they will even hold decisions over from term to term, if necessary, \nto accommodate one of their brethren who is ailing. <\/p>\nof it for years, or even at death’s door, yet outside the confines of the Court, \nthis fact would never be known (or if known, would never be reported). No one outside \nthe Court, and his family, knows the duration or extent of Rehnquist Placidyl-related \nproblems. \n<\/b>

Addressing The Problem: Mandatory Retirement?<\/p>\n

\t At this time, there is no indication that the current justices are \nso seriously ill as to be mentally incapacitated. But the older a justice becomes, \nthe greater the odds are of such a problem. As Judge Richard A. Posner observes in \nhis book on aging, “the judiciary is the nation’s premier geriatric occupation.” \nThat reality is only magnified at the top of the judiciary, at the highest court \nin the land.<\/p>\n

Many of the Court’s greatest justices have stayed on far too long. Oliver \nWendell Holmes, William O. Douglas, and Thurgood Marshall are well-known examples. \n<\/p>\n

Justices stay on the Court too long for a host of reasons. It may be all they \nknow to do. Or they do not want to lose prestige. Some believe they are indispensable. \nOthers stay because they are concerned about the balance of the Court, particularly \nwhen, as now, the Court is philosophically divided.<\/p>\n

Most states have addressed this problem by placing mandatory retirement ages \non judges at 70 or 75 years of age. Our lower federal courts place judges in senior \nstatus at 70, reducing their workload. But our highest court in the land has ignored \nthe problem.<\/p>\n

I recall discussion of this problem when I served as minority counsel to the \nHouse Judiciary Committee in the mid-1960s, but nothing was done. Congress had \nearlier, but unsuccessfully, addressed this problem, with the full support of \nthe American Bar Association.<\/p>\n \n<\/b>

The Need for a Constitutional Amendment<\/p>\n \n

Last Fall, law professor David J. Garrow analyzed the prior Congressional \nefforts in the University of Chicago Law Review, in a piece entitled “Mental Decrepitude \non the U. S. Supreme Court.” Professor Garrow concluded that it will take an Amendment \nto the Constitution, imposing a mandatory retirement age on justices, to provide \na solution. (The reason an amendment is necessary is that the Constitution guarantees \nJustices life tenure, in order to guarantee their independence.)<\/p>\n

Professor Garrow’s well-researched article included thoughts from several \nformer justices about a mandatory retirement age. For example, neither former \nchief justice Earl Warren, nor Justice Potter Stewart, opposed a constitutional \namendment limiting Justice’s tenure to age 75 “if it applied across the board \nto the other branches, too.”<\/p>\n“it would have been wise for the Founding Fathers to have required retirement \nfor federal judges at a specific age, perhaps at 75.” \n

In 1991, writing for a majority of the Court in Gregory \nv. Ashcroft<\/a><\/i>, which addressed the constitutionality of a Missouri law requiring \nthe states’ judges and justice to retire at age 70, Sandra Day O’Connor wrote:<\/p>\n

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It is an unfortunate fact of life that physical and mental capacity sometimes \ndiminish with age. The people may therefore wish to replace some older judges. \nVoluntary retirement will not always be sufficient. Nor may impeachment — with \nits public humiliation and elaborate procedural machinery — serve acceptably \nthe goal of a fully functioning judiciary.<\/p>\n<\/blockquote>\n

The Court upheld Missouri’s mandatory retirement of judges, even though it \ndid not apply to other elected state officials, “whose performance is subject \nto greater public scrutiny.” <\/p>\n

Based on the reasoning of this precedent, the members of the current Court \nwho signed onto Gregory<\/i> ought to support a mandatory retirement age for \ntheir own court as well. <\/p>\n \n<\/b>

A Partial Solution to an Intransigent Problem\t<\/p>\n \n

\tUnfortunately, the problem of the mental incapacity of justices, should \nit occur, will likely remain hidden by the Supreme Court. While compelling mandatory \nretirement at 75 years of age would reduce the problem, it will not eliminate \nit; many judges’ capacity diminishes before age 75, just as many pass 75 with \ntheir faculties intact. Nor am I aware of any effort whatsoever at present to \nso amend the Constitution. <\/p>\n

There is, however, a partial solution. If the Congress flexed a little muscle, \nit could no doubt get the Supreme Court to voluntarily provide all justices’ health \ninformation on a regular basis to a select joint committee of the House and Senate. \nSuch an informal check on the Court could give the public some assurances that \nlaw clerks are not running an incapacitated justice’s office. Moreover, editorials \nurging that a particular Justice should resign might have some persuasive effect \n\u0097 for the justice would know from them that his or her remaining on the Court \nwould tarnish its image. <\/p>\n

Meanwhile, it is up to the media. If they watched the Court half as closely \nas they are watching California Congressman Condit, we would know far more than \nwe needed to know about the health of the Justices.<\/p>\n<\/span> \n\n

\n\n\n<\/a>\nJohn Dean, a FindLaw columnist, is a former Counsel to the President of the United States.\n\n\n

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