How Old Is Too Old for a Justice?
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David Souter, a spry 69, has decided to retire from the Supreme Court. He’s wanted out for years, and now he has a president he presumably likes (while appointed by a Republican, he’s become a reliable member of the court’s liberal bloc).
So, should Souter be a model for other justices? He’s far from the oldest on the court. In fact, he’s much younger than either Justice Ginsburg, 76, or Justice Stevens, 89, the other two liberal justices whose names have been mentioned as possible retirees.
While Souter appears to be in great health, plenty of justices either die in office or are wheeled out just a step (wheel roll?) ahead of the Grim Reaper.
Plenty of people have been asking: Should justices retire earlier due to the possibility of cognitive decline? And should they be forced to step down by a mandatory retirement age?
The Supreme Court itself has refused to overturn mandatory retirement ages when such a retirement age is tied to an occupational qualification — such as for pilots, law enforcement officers, firefighting, air traffic control, etc.
But those are occupations where physical health and quick reflexes are a must — and where their absence would be a significant danger to the public. Does the average cognitive decline of a normal person in their seventies or eighties qualify as a similar impediment to siting on the bench?
While I’m an admirer of our Founding Fathers and always quite reluctant to tinker with their work, a set-age retirement wouldn’t undermine the basic idea of lifetime tenure, which is to provide the judiciary branch with a significant amount of stability and to insulate it from politics. Serving until 70 or 75 is still plenty stable; and a mandatory retirement at such an age does nothing to make the judges more susceptible to politics. In fact, it prevents them, to some extent, from trying to time their retirements to match up with political calculations.
The question, then, is what evidence exists for justices (or judges generally) seeing their work affected by advancing age.
This article (PDF) looks at what happens when judges go into cognitive decline. Basically, those around them try to cover it up:
Aging presents a new set of issues. Due to the gravity and responsibility of their work, mandatory retirement terms are in place in most jurisdictions, except in the federal courts. When a sitting judge on active service begins to exhibit signs of cognitive or physical decline, it is quickly noted and guardedly discussed within the court family and bar. At the same time, ranks close around the judge, and there arises a great disinclination to question the judge’s capabilities.
This is a natural reaction: a combination of denial and closing ranks. And I think it points toward the fact that the public is often going to be kept in the dark when a justice’s mind begins to slip.
And what happens when that happens? Well, cognitive decline often means everything from memory loss to trouble concentrating. Not exactly the things we’re looking for in a Supreme Court justice. (Aging can also cause the loss of sense of humor — which, for Justice Scalia, would really negate the whole purpose; and Chief Justice Roberts has been no slouch in making with the funny, either, though he has a long way to go until old age.)
And given the prevalence rates of dementia among the elderly:
75-79 5.6%
80-84 11.1%
85+ 23.6%
It’s hardly a stretch to say we’ll inevitably have Supreme Court justices who fall prey.
Richard Posner has made this suggestion:
[B]eginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years. (I use these simply as examples of “light” jobs from which the occupant is unlikely to be forced to retire by the demands that the job places on him.) The test results would be available to the members of the professor’s department or the judge’s court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.
Sounds reasonable to me.
Or, maybe we should be making them exercise and do Sudoku.
Of course, since recent research has suggested that cognitive decline begins in your late 20s, maybe I should just shut my addled, 30-year-old trap.
UPDATE (5/1/09, 2:33): Jesse Walker at Reason sends on an article I’d been trying to locate, from the Reason archives: Supreme Court Senility. Some instructive history with specific examples of Supreme Court justices who probably ought not have remained on the bench.
I’ll excerpt a bit below the fold…
From the article’s intro:
In his last years on the Court, Thurgood Marshall reportedly spent his days telling tales, watching TV, and letting his clerks do the bulk of his work. Slow, feeble, and increasingly deaf, he once embarrassed himself during oral arguments by revealing he didn’t realize which side the lawyer he was interrogating represented.
He probably didn’t realize it, but he was part of a long Supreme Court tradition. A decade and a half earlier, William O. Douglas closed out his time on the bench by dozing during arguments, addressing people by the wrong names, and speaking in non sequiturs; after his resignation, he continued to show up for work, apparently convinced that he was still on the Court. Joseph McKenna was so incompetent at the end of his term that, in the words of his colleague William Howard Taft, he once “wrote an opinion deciding the case one way when there had been a unanimous vote the other, including his own.” Taft stayed on the job a little too long himself: In 1930 Louis Brandeis wrote to Felix Frankfurter that their colleague “had really lost his grip.”
This wasn’t merely a sad sideshow. In some important cases–notably Bowers v. Hardwick, the infamous 1986 decision that upheld Georgia’s sodomy law–an incapacitated judge (in that case, Lewis Powell) actually cast the deciding vote.
These examples come from “Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment.”
You might also check out “Term Limits for the Supreme Court: Life Tenure Reconsidered.”
The interview with Historian David J. Garrow is worth clicking through to the full Reason article.
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Under no uncertain circumstance should there be a forced retirement for member of the court. Just imagine what the court would look had 4 or 5 justices been force to retire during Bush’s time in office. A very bad idea!
I had a knee-jerk NO reaction to this idea, especially since I have an 89-year-old uncle who can analyze our economic collapse and explain the nuances of any Supreme Court decision better than anyone on this site.
Then I thought…maybe a cognitive test isn’t a bad idea. Seems reasonable. Seems fair.
But wait!–couldn’t this become the plot of a bad thriller? The testers are bribed. Drugs are placed in the judges’ drinks…
So I’m back to the knee-jerk NO.
The only reason we would force a retirement would be due to a question of mental decline leading to bad decisions. But what about Justices like Souter who are young and make bad decisions as a rule?
Jane – before attacking Justice Souter based on partisan beliefs, name one case written by him that was logically unsound. Better yet, how about just name one case written by him that you actually read.
From here on out let’s say new appointees to the U.S. Supreme Court should be under 60. That way they’ve got plenty of “season” on them … but dementia probably hasn’t got a toe-hold on their brain yet.
I like that idea. You? ~DD
Ryan,
Life tenure still suits me fine with The Supreme Court. The older they get, the more colorful they get. As you mention, they close ranks around the afflicted anyway. There are many greater concerns than maybe one Justice being a little off the beam.
Nine Justices is a lot and that really is the protection from the age issue, from my view. I think I’d rather have a mad man on The Supreme Court than have one there for so many years that hates the job and Washington. Justice Souter may only be 69, but he is miserable. He stayed far too long. Can you be effective if you hate your job so much? I imagine ego kept him on the court. To change the life tenure of The Supreme Court Justices would probably spend the rest of my life in the courts without being decided.
Sandy
I think the number of judges, and the bloc breakdown, does help. If the liberal justice just keeps voting with his liberal colleagues (and isn’t given opinions to write), maybe there’s not all that much harm.
In response to another comment. See in context »Ego didn’t keep him on the court, if you knew anything about the man you wouldn’t be tossing an ego charge at him. Souter is one of the most humble men to ever sit on the court. He stayed on because he didn’t want to Bush another opportunity to put another justice on the court.
In response to another comment. See in context »[...] * Onion video — World’s Oldest Neurosurgeon Turns 100 — haven’t these people ever heard of mandatory retirement? [...]
By the way, Alzheimer’s can strike people in their 30s, 40s and even 50s. It is the leading cause of dementia, but not the only one.
Wouldn’t we just end up with a bunch of people trying to game the system? “You can’t choose X” because X is 53 years old and so is Justice Y so then both would be retiring at the same time.”
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