The Age of the Justices

With the Supreme Court vacancy and talk of whether President Trump will get another Supreme Court pick, the age of the Justices has been become a subject of discussion.

The oldest Justice is Ruth Bader Ginsburg, who is 85. The next oldest is Anthony Kennedy, who is stepping down at 82, and then Stephen Breyer, who is 80.

The obvious question to ask about the ages of the Justices is whether the Justices are too old. The Supreme Court has enormous power. In what other area of government do people exercise significant authority in their 80s? None. A couple of Justices have even served into their 90s, with the most recent being Justice Stevens. It is true that some people retain their faculties into old age, but even those who do so experience a decline. And many do not retain their faculties.

It is true that people are living longer and perhaps are retaining their faculties and abilities longer. Thus, the Presidents have been getting older. President Trump was the oldest President when first assuming the office, at age 70. President Reagan was the oldest President when stepping down, at age 77. Yet, President Reagan appeared to be suffering from Alzheimer’s disease in 1989, and he served until 1988.

Clearly, the oldest Presidents are considerably younger than the oldest Justices. But the process of becoming a President is more grueling. One must campaign a great deal. People who have health or other problems will have a difficult time attaining the office and then serving in it.

In the case of Justices, the requirements of the job are different. They may go through a grueling appointment process, but once they are in the job, they are set. So decline can occur over time.  The job, moreover, is much easier today than it used to be. The Justices have 4 elite clerks who work for them. It is quite possible for a Justice simply to decide how to vote and then have the clerks write the opinions. I am not suggesting that this is occurring today or that it happened in the past, although there have certainly been rumors and allegations to that effect.

In the past, it was said that when a Justice could no longer do the job, his colleagues came to him and asked him to step down. And perhaps this process still works, but perhaps not. The world has changed. If the other Justices asked Ruth Bader Ginsburg to step down, one can imagine charges of sexism being leveled. Moreover, in this hyper-partisan world, where the Justices time their retirements to allow a President of their party to replace them, the Justices might be reluctant to step down while a President of the opposite party served. If the Republican Justices asked a Democratic Justice to step down, cries of partisanship might be made.

So what should be done about this? The first step is to recognize that we have a problem. The next is to consider solutions. The best solution, in my view, is to have 18 year terms for the Justices, with a new Justice to be selected every 2 years. This is a widely supported proposal by people on both sides of the political spectrum. It would not only address the age issue, but also the problem of Justices stepping down so as to determine who may appoint their replacements and of some Presidents receiving more appointment opportunities than others. Unfortunately, I believe it would require a constitutional amendment to enact.

But even if one does not favor that solution, it is important for us to realize that the Supreme Court has some defects as an institution. And one of the most serious is the life tenure of the Justices.