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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.

Reader Discussion

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on July 13, 2018 at 10:53:11 am

I prefer a system with longer terms in office, while still resolving the problems identified. Instead I would suggest a 36 year term for a Supreme Court justice (one justice selected every 4 years, so a President would get 1 justice for each term they are in office). And allow the justice to select their deputy (which would have to be senate confirmed) that would take over for them (for the rest of their term) should they step down or retire. I think this would create more stability in the law (longer term in office is more stable), and would solve the problems of random deaths or retirements changing the balance on the court, and allow justices to retire earlier while knowing someone of a similar judicial mindset would take over their term in office.

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Devin Watkins
on July 13, 2018 at 18:18:27 pm

"So what should be done about this?"

This is like changing the engine oil on the Titanic after the iceberg has done it's damage.

How about we have the other Branches fulfill their own constitutional duties / responsibilities and finally put an end to this cult of Judicial personalities?

I am with Greg Weiner on this.
Let the other Branches do their job, pursue and protect their own institutional ambitions (not their personal ones).
But then again, I am one of those who believes that summer begins on 21 June (or so) not 15 July as is the case in the Pacific Northwest. So obviously, I am unable to tell which way the wind blows, nor how hot it will (or should be).

We twist ourselves out of shape trying to correct that which ought never to have been a problem in the first place had we, and I do mean WE, the People been sufficiently vigilant in protecting our republican regime and insisting that all Branches restrain themselves within their constitutional boundaries. Consequently, we are apt to make ill-considered (and unconstitutional) changes to SCOTUS; recall, if you will, the phrase, "good behavior". Absent an amendment to COTUS, this "ain't gunna happen, kiddies."

The fault, dear brutes, lies not solely with the Black Robes, but in ourselves.

Now let me channel surf and find another Reality TV show.

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gabe
on July 13, 2018 at 20:04:50 pm

I tend to view this as the problem that isn't one; or at least isn't much of one of great consequence. What's the worse that could happen, RBG might vote with the conservatives by accident or someday, Thomas with the liberals. Beyond that, when the Justices ALWAYS (nearly) vote along ideological lines, does it really matter if they "phone it in", or have their clerk write the opinion, or for that matter, fall asleep during argument?

P.S. if I sound more cynical than usual, its because I am trying to retake the Cynical Crown away from Nobody...

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Paul Binotto
on July 14, 2018 at 13:55:33 pm

Supreme Court Justices should serve a term of say 20 years or mandatory retirement at 75, which ever comes first. Hard to see the rationale for a lifetime appointment and why someone who is the creature of a different era should have such a disproportionate effect on today's world. Also, based on ordinary human experience, seems very doubtful that most of the justices serving in advanced old age are fully competent.

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Jack
on July 15, 2018 at 10:17:01 am

There may be something to this age issue after all. Take a peek at one of the aged ones:

https://i2.wp.com/www.powerlineblog.com/ed-assets/2018/07/Ginsburg-wakes.jpeg?resize=505%2C600

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gabe
on July 15, 2018 at 13:54:21 pm

Only you, Mr. Gabe, only you!! Ha!

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Paul Binotto
on July 15, 2018 at 19:27:50 pm

The biggest problem --by far-- is not the decline from aging, but the moral ineptitude that characterizes so many judges and "Justices". An effective solution consists of (1) lowering the bar for removal from judicial office, and (2) downgrading the pernicious doctrine of judicial immunity. Only these changes will steadily filter out judges whose pattern of miscarriage of justice should get them disbarred and incarcerated.

Merely suppressing life tenure will not do any good because it still affords a judge/Justice a multi-year opportunity to suppress and violate the law. I've covered elsewhere [1] felon Carol Kuhnke's notorious history of corruption during her first years of "judgeship". Neither the Judicial Tenure Commission ever touches felon Carol Kuhnke, nor has any attorney dared to contend with her in the upcoming elections. These are just two facets of what gabe rightly calls in his comment "the cult of Judicial personalities" [2].

The case of Michigan judge Gorcyca reflects how "Justices" of a jurisdiction can be very interested in keeping their perverse colleagues/subordinates in office no matter what. Judge Gorcyca was sworn in office in 2014, and it was in 2015 when this pathetic judge bullied and jailed three innocent kids for their refusal to have lunch with their father and a "healthy" relationship with him. The Michigan Supreme Court ruled, with "Justice" Joan Larsen concurring, that a "public censure" is proportionate sanction for Gorcyca's acts of judicial brutality.

Ironically, it appears that Larsen was considered a potential replacement of Justice Kennedy. I'm sure that any reasonable person would prefer the appointment of a Justice who possesses more integrity than what Larsen showed when she favored judge Gorcyca [3].

Given that a six-year term is more than sufficient time for corrupt judges like Carol Kuhnke and Lisa Gorcyca to develop their pattern of corruption and perversity, respectively, it is very doubtful that limiting tenures to 18 years will make the judicial system any better.

Moreover, judges' prospect of perpetual immunity for their black-robe crimes only encourages judicial corruption. Under such circumstances, it matters little that a judge's abuse of office will be limited to 6, 12, or 18 years: the next elected/appointed judge will take over for corruption to follow its course.

[1] http://www.oneclubofjusticides.com/2018/04/felon-carol-kuhnke-seeks-reelection-as.html
[2] http://www.libertylawsite.org/2018/07/13/the-age-of-the-justices/#comment-1693926
[3] http://www.oneclubofjusticides.com/2018/07/larsen-in-scotus-big-no-no.html

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Iñaki Viggers

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.