WHEN SUPREME COURT JUSTICES REFUSE TO RETIRE: Why We Need More Media Coverage, And A Constitutional Amendment

As the past term of the Supreme Court ended, there was wide speculation that one or more of the aging justices would retire. None did.

Justices can retire with full salary. Those wishing and able to remain active can sit on any of the U.S. Court of Appeals, serving as a senior appellate judge. And many justices have done just this — long before their health or advanced years might become a factor in their performance of their judicial functions.

While bodies may wither, or fall ill, with age, the mind can remain good. Mental incapacity is the problem. And it is not always easy to discern, even in younger justices. No institution in government is more secretive than the Supreme Court, particularly about the health of the justices.

Moreover, 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 don't report these facts even if they learn them. They want to remain in the Justices' good graces.

This practice should change. In addition, a constitutional amendment imposing a mandatory retirement age on Justices should be seriously considered.

Justices' mental problems are all too easily hidden. While on the bench, Justice Frank Murphy, who served from 1940-49, had a serious drug problem (Demerol addiction), and was seeing a psychoanalyst. One biographer reports that at one point, he was illegally purchasing drugs twice a day. Law clerks, and other justices, were deciding his votes. No one outside the Court knew.

Similarly, only family and colleagues knew that Justice Charles E. Whittaker, who served from 1957-62, was suffering from years of depression, often so severe that he could not make decisions. This disability forced him to leave the Court, but the truth was slow in surfacing.

Long before Associate Justice William Rehnquist was nominated to be chief justice, he had a serious health issue that may have impaired his decisionmaking. For nine years, from 1972-81, the Capitol physician, Freeman H. Cary, had prescribed a powerful hypnotic medication, Placidyl, because of Rehnquist's chronic lower back pain.

This powerful controlled substance is prescribed for relief from insomnia. Its known side effects include "confused thinking, impaired memory," and even "delirium." Rehnquist started at 500 milligrams a day, but the dose soon tripled, to 1500 milligrams a day.

Strikingly, like Murphy's and Whittaker's before him, Rehnquist's possible mental health issue received little notice — despite the burgeoning and diversification of the media in the intervening years.

By 1981, journalists covering the Supreme Court did notice that the highly articulate Rehnquist was having increasing difficulty asking questions from the bench. Reporters who engaged in private conversations with Rehnquist noted that he clearly had "significant difficulty talking." But none wrote about it.

It was not until Justice Rehnquist ended up in the hospital in January 1982, and it was learned that the Justice had been "seeing things and hearing things that other people didn't see or hear," did reporters say anything.

Even when he was elevated to chief justice, Rehnquist's health records remained sealed during his confirmation hearings. More than this, the Senate Judiciary Committee agreed in advance not to ask him any questions about his health. He did testify about the cloak of secrecy regarding the health of justices, but not about his own condition.

"I think judges have much more of a tendency to 'pull the wagons around' or something like that … particularly on our Court, where there are only nine seats, the health of every individual Justice is an endless subject of speculation," Rehnquist told the Senate. As chief justice he has continued to keep his, and the other justices', health well hidden. We can only assume that Rehnquist is in better mental health than at the time of his 1982 hospitalization.

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

David Atkinson, a professor of political science, has undertaken one of the few studies of the way justices exit from the Court. In his 1999 book Leaving The Bench: Supreme Court Justices At The End, professor Atkinson reviewed departures from the Supreme Court from its inception to the last person to leave: Justice Blackmun, who departed the Court in 1994.

Atkinson found that "[i]n recent years the justices have delegated more and more of their work to their law clerks. This increase in the use of staff affects, of course, all of the justices, not merely those who are infirm or who have diminished capabilities." Accordingly, he found that illness or incapacitation does not lessen productivity by the justices' offices — though it may, of course, affect the quality of decisionmaking.

Apparently so long as the paper keeps flowing, other justices do not complain. To the contrary, they will even hold decisions over from term to term, if necessary, to accommodate one of their brethren who is ailing.

Many of the Court's greatest justices have stayed on far too long. Oliver Wendell Holmes, William O. Douglas, and Thurgood Marshall are well-known examples.

Justices stay on the Court too long for a host of reasons. It may be all they know to do. Or they do not want to lose prestige. Some believe they are indispensable. Others stay because they are concerned about the balance of the Court, particularly when, as now, the Court is philosophically divided.

Most states have addressed this problem by placing mandatory retirement ages on judges at 70 or 75 years of age. Our lower federal courts place judges in senior status at 70, reducing their workload. But our highest court in the land has ignored the problem.

I recall discussion of this problem when I served as minority counsel to the House Judiciary Committee in the mid-1960s, but nothing was done. Congress had earlier, but unsuccessfully, addressed this problem, with the full support of the American Bar Association.

Last Fall, law professor David J. Garrow analyzed the prior Congressional efforts in the University of Chicago Law Review, in a piece entitled "Mental Decrepitude on the U. S. Supreme Court." Professor Garrow concluded that it will take an Amendment to the Constitution, imposing a mandatory retirement age on justices, to provide a solution. (The reason an amendment is necessary is that the Constitution guarantees Justices life tenure, in order to guarantee their independence.)

Professor Garrow's well-researched article included thoughts from several former justices about a mandatory retirement age. For example, neither former chief justice Earl Warren, nor Justice Potter Stewart, opposed a constitutional amendment limiting Justice's tenure to age 75 "if it applied across the board to the other branches, too."

In 1991, writing for a majority of the Court in Gregory v. Ashcroft, which addressed the constitutionality of a Missouri law requiring the states' judges and justice to retire at age 70, Sandra Day O'Connor wrote:

It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment -- with its public humiliation and elaborate procedural machinery -- serve acceptably the goal of a fully functioning judiciary.

The Court upheld Missouri's mandatory retirement of judges, even though it did not apply to other elected state officials, "whose performance is subject to greater public scrutiny."

Based on the reasoning of this precedent, the members of the current Court who signed onto Gregory ought to support a mandatory retirement age for their own court as well.

Unfortunately, the problem of the mental incapacity of justices, should it occur, will likely remain hidden by the Supreme Court. While compelling mandatory retirement at 75 years of age would reduce the problem, it will not eliminate it; many judges' capacity diminishes before age 75, just as many pass 75 with their faculties intact. Nor am I aware of any effort whatsoever at present to so amend the Constitution.

There is, however, a partial solution. 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. Moreover, 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 its image.

Meanwhile, it is up to the media. If they watched the Court half as closely as they are watching California Congressman Condit, we would know far more than we needed to know about the health of the Justices.