Life Tenure

A few days ago we briefly examined a pair of remedies proposed for what many perceive to be the increasing problem of life tenure for Supreme Court justices.
The election of Supreme Court justices would appear to be an untenable and reckless scheme. It would render the court itself a redundancy and make the Constitution a nullity – and we are already much too close to that perilous danger.
On the other hand, if a credible transitional measure could be devised, the idea of staggered single terms of 18 years for justices has considerable appeal. It would preserve judicial independence while lessening the risk of judicial senescence. The latter consideration is not a triviality.
In the July edition of Reason, Jesse Walker interviews historian David J. Garrow and explores the question of “Supreme Court Senility”
“William Rehnquist, the chief justice of the U.S. Supreme Court, announced in October that he had thyroid cancer. John Paul Stevens, the long-serving associate justice, just turned 85,” he observes. “From the outside, it’s hard to tell whether they’re still able to perform the jobs they hold. But we do have an idea of what the worst-case scenario would look like.
“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.”
The instance of William O. Douglas’s final term on the court is elucidating. In “The Brethren”, Bob Woodward sketched a portrait verging on the pathetic.
Following a stroke, “Douglas was developing the paranoid qualities of many stroke victims. Douglas complained that there were plots to kill him and to remove him from the bench. Once he was wheeled into the Chief’s chambers and maintained it was his. Rumors circulated among the staff that Douglas thought he was Chief Justice. Douglas could sit in one position comfortably for only a short period, and he often fell asleep at oral arguments.” (p. 428)
Despite obvious signs of incapacity, Douglas refused to consider resignation. This presented the court with serious difficulties. Woodward explains that “there were no ground rules on the participation of a disabled Justice. Technically, he could vote in all cases. A Justice did not have to attend oral argument or listen to a tape of it. He did not even have to attend conference. He could send his conference vote by memo, or through another Justice. But a sick Justice was a handicap. The really tough cases, cases on which the court was closely divided, could not be decided if one Justice was unable to vote, or if there was a chance he might die or retire before the decision cam down.” (pp. 423-4) “With Douglas in and out of the hospital, the terms main cases continued to back up.” (P. 435)
As a consequence, “as it became increaingly obvious that Douglas was physically and mentally disabled, a consensus began to develop. They would hold up any 5-to-4 decisions that had Douglas in the majority to see if someone in the minority would be willing to switch and make it 6 to 3. If that did not happen, those 5-to-4 cases would be treated as if they were 4-to-4 ties, and they would be put over for reargument the next term.
“The strategy had the practical effect of nullifying Douglas’s vote. It would only be counted when it did not matter. (p. 435)
“. . . [U]neasy as they were over taking this step, the Justices felt that it was necessary to protect the long-range interests of the court.”
As speculation about his competence became more widespread, Douglas attempted to dramatize his continuing capacity by holding hearings in Yakima, Washington “on an emergency request to prevent disclosure of grand jury records.” The event backfired badly.
“Douglas . . . announced that the court would recess for lunch at 12:30. It was already 1 pm.
“After lunch the lawyers finished with their arguments. Douglas seemed to have understood, but he said nothing . . . After thirteen minutes, he broke the silence. He thanked the lawyers for their ‘spirited’ and ‘helpful’ argument. The spectators and attorneys, relieved that Douglas had snapped back, awaited his decision. But Douglas began to talk about federalism. He rambled on, comparing the governments of the United States and Australia . . . Finally he paused and said he would issue the emergency stay.” (pp. 461-2)
Despite even this profound embarrassment, Douglas still refused to resign. He continued to deteriorate. He “was in constant pain and barely had the energy to make his voice audible. He was wheeled in and out of conference, never staying the entire session, leaving his votes with Brennan to cast. Powell counted the number of times Douglas fell asleep. Brennan woke him when it cam time to vote.” (pp. 464-5)
“A pattern was evident. Douglas had moments of lucidity and energy followed by near incoherence and sleep. is absences increased. He could barely function on the bench . . . . Often he left the bench midway through oral arguments because of the unbearable pain.” (P. 465) Yet he persisted as his condition worsened.
The case of William O. Douglas is by no means unique. Walker introduces his interview by referencing Garrow’s study “Mental Decrepitude on the U.S. Supreme Court” which appeared in the Fall 2000 University of Chicago Law Review. This “article demonstrates in uncomfortable detail that the Supreme Court is an institution not just of laws but of men, and that since the 18th century some of those men have suffered from senility, severe depression, even drug addiction. In the late 1940s, Justice Frank Murphy was hooked on Seconal and then Demerol, and ‘some of his closest acquaintances were convinced that the Justice was regularly purchasing illegal drugs.’ He was hospitalized more than once, and during his absence he instructed a colleague to cast his votes for him. In at least one case, ‘his’ position was conjured by committee, with two justices and Murphy’s clerk collaborating to invent an opinion for the phantom judge.
“This year Garrow wrote ‘The Brains Behind Blackmun,’ published in the May/June Legal Affairs. From Justice Harry Blackmun’s papers, Garrow uncovered the story of a judge who, in the historian’s words, ‘ceded to his law clerks much greater control over his official work than did any of the other 15 justices from the last half-century whose papers are publicly available.’ Blackmun wasn’t the only justice to use his clerks as a crutch, but he didn’t even have the excuse of mental decrepitude: As far as anyone can tell, he was perfectly capable of doing the work he gave his assistants. He just didn’t want to.”
Garrow explains that “once we understand the present Supreme Court — where each justice is entitled to four law clerks and the Court is annually deciding no more than about 80 full-fledged cases — we have to acknowledge frankly that being a justice is a very pleasant and cushy part-time job. You have some of the smartest people in the country helping you do your work — or, if you so choose, doing your work for you. And the Court today has significantly less work on its platter than it did 25 or 50 years ago, because the docket is completely discretionary. Back in the 1970s, they took around 150 cases a year.
“Both with justices past and with at least two present members of the Court — I don’t want to use names — there is every indication that they so enjoy the social stature of being a justice that they are loathe to give up the position when the minimal job performance demands can either be met rather easily or handed off.”
Garrow advocates the adoption of a constitutional amendment mandating that Supreme Court Justices retire at age 75, arguing that “setting a mandatory retirement age, which could be done only by constitutional amendment, is no magic bullet. But the historical record teaches us that it would solve the great majority of problems.”
With media attention riveted upon the impending Senate confirmation of a successor to retiring Justice Sandra Day O’Connor and the possible resignation of Chief Justice William Rehnquist, there is no better time than the present to reevaluate life tenure for justices and assess the viability of alternatives.