An Age Limit for Supreme Court Justices?

 

GinsburgNoted Supreme Court scholar David Garrow argues that the Supreme Court, and Chief Justice John Roberts specifically, should take action to address the increasing age of judges. He raises an important problem: the Supreme Court should not be a comfortable retirement home. Garrow proposes that judges undergo mental health checkups and that new judges agree to a retirement age.

But I do not think there is any way that a law could do constitutionally. The Constitution does not permit removal of a judge from office except in limited circumstances, and only through the process of impeachment. Article III, Section 1 of the Constitution states that “the judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.”

While the Constitution does not define “good behavior,” our historical practice has. Judges who have committed violations of federal criminal law, such as Judge Walter Nixon, can be impeached. During the Jefferson administration, Congress impeached and removed a judge who was apparently a drunkard on the bench (and this before the day of the breathalyzer). But Jefferson’s effort to impeach Justice Samuel Chase, on the claim that he was injudicious in his behavior (but was really a not-so-veiled effort to remove a Federalist from the bench), failed to win conviction in the Senate. I believe that age alone could not be grounds for impeachment and removal, and perhaps not even mental illness, unless it truly incapacitated a judge from the job.

An arbitrary age should not be a disqualification to serve on the bench. I would be the first to say that there are many lawyers who are in their 40s and 50s who should not be judges, and that there are many judges on the bench in their 70s and even 80s who do a fine job. Maybe 90 is the new 70.

That said, our states have improved on the federal system by rejecting the idea of a lifetime appointment to the bench. Some states have fixed terms and limited renewal for judges. Rather than age, the principle should be that no judge should serve longer than a fixed number of years, perhaps 12 or 15. This would require a constitutional amendment. Even though judges could voluntarily promise in their confirmation hearings to quit after a certain number of years, there is no constitutional way for other judges, Congress, or the President to force them to keep it.

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There are 23 comments.

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  1. EJHill Podcaster
    EJHill
    @EJHill

    What about reconfirmation hearings after 10 or 15 years?

    • #1
  2. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    John Yoo: During the Jefferson administration, Congress impeached and removed a judge who was apparently a drunkard on the bench … I believe that age alone could not be grounds for impeachment and removal, and perhaps not even mental illness, unless it truly incapacitated a judge from the job.

    If alcoholism is considered a mental illness…

    • #2
  3. Ned Walton Inactive
    Ned Walton
    @NedWalton

    I would approve of a mental health test, as long as I get to appoint the mental health examiners.

    • #3
  4. Hoyacon Member
    Hoyacon
    @Hoyacon

    Term limits–18 years, three person rotation every six years.  That covers 4.5 presidential election cycles (at least three presidents) and nine congressional elections.  I think people of both parties are sufficiently frustrated with lifetime tenure that this could get done.  And stop revering stare decisis for 80 year old decisions while we’re at it.

    • #4
  5. Quake Voter Inactive
    Quake Voter
    @QuakeVoter

    The legal megalomania that underwrites the Court’s imposition of their personal set of moral and social prejudices on fifty states and 300 million Americans is the real mental illness that we all suffer from.

    A couple of doddering justices on a Court with modest jurisdiction wouldn’t be a critical issue.

    • #5
  6. EJHill Podcaster
    EJHill
    @EJHill

    Hoyacon: And stop revering stare decisis for 80 year old decisions while we’re at it.

    Roe v Wade: Stare decisis!

    Citizens United: Are you effin’ NUTS?!?!

    • #6
  7. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    I think it would be a great idea.

    • #7
  8. Sash Member
    Sash
    @Sash

    Not until after the election… please.  We don’t want to alert the left wing hoards.

    • #8
  9. She Member
    She
    @She

    An age limit for Supreme Court Justices?  Most definitely, yes!

    I think that no person who is not at least eighty years old should be nominated for the US Supreme Court.

    If this rule were put into effect, it would do a lot to mitigate the damage done by these young whippersnappers who are in their forties when they are confirmed, and it would prevent them from extending the often miserable legacy of the President who appointed them out several decades after he (or perhaps, soon, she) leaves office.

    • #9
  10. Arahant Member
    Arahant
    @Arahant

    She: I think that no person who is not at least eighty years old should be nominated for the US Supreme Court.

    Now that is out-of-the-box thinking.

    • #10
  11. Kay of MT Inactive
    Kay of MT
    @KayofMT

    Arahant:

    She: I think that no person who is not at least eighty years old should be nominated for the US Supreme Court.

    Now that is out-of-the-box thinking.

    I’ll be 80 in two years and except for lacking a law degree and experience, I’m quite prepared to sit on the Supreme Court. I think I could make better decisions than most who are currently sitting.

    • #11
  12. Arahant Member
    Arahant
    @Arahant

    Kay of MT: I think I could make better decisions than most who are currently sitting.

    I suspect so.

    • #12
  13. Hoyacon Member
    Hoyacon
    @Hoyacon

    Kay of MT:

    I’ll be 80 in two years and except for lacking a law degree and experience, I’m quite prepared to sit on the Supreme Court. I think I could make better decisions than most who are currently sitting.

    I don’t doubt it.  And you could do what they do–work your clerks to death, attend a few conferences with people mostly your own age, and tell the Chief Justice to give you a light load of writing.   You could be an older, more conservative Elena Kagan.

    • #13
  14. Hoyacon Member
    Hoyacon
    @Hoyacon

    SheIf this rule were put into effect, it would do a lot to mitigate the damage done by these young whippersnappers who are in their forties when they are confirmed, and it would prevent them from extending the often miserable legacy of the President who appointed them out several decades after he (or perhaps, soon, she) leaves office.

    Don’t bet on it.  100 is the new 80.

    • #14
  15. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    They all stay too long. Blackmun, Rhenquist, and Marshall come to mind as recent examples of justices suffering health problems, and borderline senescence.

    Not just judges either.

    I’m 64, 70 is looking better all the time. But my observation is that somewhere between the age of 70 and 80 in many, many cases there’s a sharp dropoff in physical vigor and mental acuity.

    People over the age of 80 really should not be in positions of great responsibility. If you still have more to contribute:  write; work for a non-profit; be a guest lecturer. But step down, don’t wait until you have to be carried out feet first.

    Same thing applies to politicians (Robert Byrd, Henry Hyde, Strom Thurmond all come to mind, and I’m sure there are plenty of additional examples).

    • #15
  16. Kay of MT Inactive
    Kay of MT
    @KayofMT

    Hoyacon:

    Kay of MT:

    I’ll be 80 in two years and except for lacking a law degree and experience, I’m quite prepared to sit on the Supreme Court. I think I could make better decisions than most who are currently sitting.

    I don’t doubt it. And you could do what they do–work your clerks to death, attend a few conferences with people mostly your own age, and tell the Chief Justice to give you a light load of writing. You could be an older, more conservative Elena Kagan.

    I thought I would take John Yoo to Washington with me. He knows how it works. All I’d have to do is hand my pay check over to him and figure out a way to stay awake during boring meetings.

    • #16
  17. She Member
    She
    @She

    Hoyacon:

    SheIf this rule were put into effect, it would do a lot to mitigate the damage done by these young whippersnappers who are in their forties when they are confirmed, and it would prevent them from extending the often miserable legacy of the President who appointed them out several decades after he (or perhaps, soon, she) leaves office.

    Don’t bet on it. 100 is the new 80.

    Not for long. You seem to have forgotten about the Patient Protection and Affordable Care Act. Once that works up a full head of steam, all bets are off.

    • #17
  18. Ball Diamond Ball Inactive
    Ball Diamond Ball
    @BallDiamondBall

    If there’s no way to get rid of Justice Ginsburg for trashing the Constitution overseas, then competence is not a useful bar.

    • #18
  19. Hoyacon Member
    Hoyacon
    @Hoyacon

    She:

    Hoyacon:

    Don’t bet on it. 100 is the new 80.

    Not for long. You seem to have forgotten about the Patient Protection and Affordable Care Act. Once that works up a full head of steam, all bets are off.

    I’d forgotten that and I stand corrected.  70 is the new 80.

    • #19
  20. Doctor Robert Member
    Doctor Robert
    @DoctorRobert

    70 is not the new 80 and 80 is not the new 70. 70 is 70. 80 is 80. 80 is too old to be a judge. 70 is probably so.
    I’m nearly 60 and as a physician, I have achieved a wealth of experience but I do see my thinking getting a little repetitive. I see the same thing in my contemporaries. So I won’t go to a doc who is much older than me.
    Age happens, age is not reversible, and we have plenty of 40-50 year old lawyers and pols and bureaucrats to turn to. I’d be happy to see a mandatory retirement of 68 or 70 or 75 for all persons in public office. Judges, Congresscritters, presidents, dog catchers, all of ’em.

    • #20
  21. A-Squared Inactive
    A-Squared
    @ASquared

    John Yoo: Rather than age, the principle should be that no judge should serve longer than a fixed number of years, perhaps 12 or 15.

    I would say a term of 18 years, rotating so a President would wind up nominating a Supreme Court justice every 2 years.  The Chief Justice would be the most senior justice, so every Justice would anticipate being Chief Justice for 2 years.

    Yes, a two term president would wind up appointing 4 justices in 8 years, but the certainty of it would prevent the gamesmanship that we now have (old justices hanging on beyond their time in hopes of a like minded President being elected).

    And yes, a two-term president succeeded by his/her VP would collectively appoint a majority of justices, but that could be reversed by the other party doing the same thing.

    They can even have a government pension after they are done.

    • #21
  22. The Reticulator Member
    The Reticulator
    @TheReticulator

    Age is not that big a problem. The big problem is people who don’t agree with me.  Another problem is people deferring to the Supreme Court when they shouldn’t, and defying the Supreme Court when they shouldn’t.

    • #22
  23. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Woo hoo!

    I dig that.

    • #23
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