Chief Justice William H. Rehnquist left the hospital July 14 and issued a firm statement: ''I want to put to rest the speculation and unfounded rumors of my imminent retirement."
The next morning, he climbed into his wheelchair and, with considerable assistance, made his way to his Supreme Court office.
At 80, Rehnquist is undergoing treatment for thyroid cancer. He has trouble walking and talking. Like all cancer patients, Rehnquist has the right to look forward to a full recovery. At the same time, he should acknowledge that almost anyone else his age, suffering from his disabilities, would be retired.
Can we stop and think before indulging in the euphemism "golden years"? At some point, you're not going to seem polite, you're going to seem sarcastic.
But let's read on. This is an article about Justices staying too long on the Court, and, as you may remember, I'm promoting less polite discussion of the problem of life tenured judges clinging to power. The Boston Globe is duly impolite:
In recent decades, Supreme Court retirements have played out like lab experiments, testing whether people in powerful jobs would retire if they did not have to. The answer, in most cases, has been no.Those who believe they are indispensible, who occupy a position where they purport to be beyond politics, yet manipulate the politics of the next appointment -- these are the people we are forced to trust with the nation's most profound questions of power and freedom.
Oliver Wendell Holmes Jr. remains the role model for all modern justices in legal thinking. Alas, he may also be the role model for never acknowledging the need to retire. Historians still recount how Holmes, at 91, slept through arguments using a stack of law books as a pillow.
Justice William O. Douglas, a passionate liberal, suffered a severe stroke in 1974, his 35th year on the court. But Douglas was determined not to give President Ford, a Republican who had led an attempt to impeach Douglas, the satisfaction of choosing his replacement. According to ''The Brethren: Inside the Supreme Court," by Bob Woodward and Scott Armstrong, Douglas allowed himself to be wheeled to the bench in a state of near-total incapacity, while aides struggled to mask the smell of his incontinence bag....
Since most of the court's work takes place behind closed doors, and each justice has a team of clerks, the public rarely sees the full effects of a justice's infirmities. ...
[Thurgood] Marshall and Douglas considered themselves heroes for serving so long rather than have a conservative replace them. But each had a chance to leave gracefully, at a normal retirement age, and have a Democratic president appoint his successor. Instead, they opted to keep hearing cases into their old age.
Rehnquist, too, could retire and have a president of his party appoint a like-minded successor. But he has been on the court so long, he probably doubts it could function without him.
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"Those who believe they are indispensible, who occupy a position where they purport to be beyond politics, yet manipulate the politics of the next appointment -- these are the people we are forced to trust with the nation's most profound questions of power and freedom."
Scary sometimes.
"while aides struggled to mask the smell of his incontinence bag...."
Well -- expect to hear that phrase more often as the workforce greys...charming!
My favorite remark about our later years comes from 3rd Rock from the Sun:
"Don't you know that smoking will take years off your life?"
"Yeah, but they're all the crappy ones at the end!"
Stranger: And speaking of hunger, these must also be a very particular sort of human being who is not only hungry for power but who has also concentrated his hunger into this one area. Other hungers common in the human being would, if pursued, mar the reputation, and the Supreme Court position demands squeaky cleanliness. Forget major sexual indiscretions. One mildly ribald remark to a prissy officemate can sink you.
In a system of "laws not men," no one (man OR woman) is indispensable. If you are a justice and think yourself indispensable, that says something important.
Weeping Jesus! We have a bunch of Clerks running the whole show!
Those who believe they are indispensible,"
--We don't know they believe that. Is it about feeling indispensible or is it about fighting for principle and what they believe is right for as long as they can? Power and principle are two different things.
"...who occupy a position where they purport to be beyond politics, yet manipulate the politics of the next appointment"
---I don't see it as politics. I see it as something larger and I think these justices do as well. It's about protecting a judicial philosophy; a life's work; The direction of the country. The stakes could not be higher. And I don't blame the liberal justices for hanging on anymore than the conservative justices. I admire it.
Except for the Wendell Holmes anecdote I see nothing here that indicates incompetence. The smell of an incontinent bag, old age? Beyond that it's all speculation.
But these are the minds and spirits of the men and women I want on the court: Fierce fighters with strong beliefs. I'd prefer they were all right-wingers, but have to admire that kind of determination on both sides.
Politics aside: These Justices believe in something and are fighting for that something until the end. Bravo. Bravo until I'm seen evidence of incompetence and mistakes and actual damage to the court.
Dirty Harry: There was a LOT more wrong with Douglas than the smell. But you're right that we can only speculate, yet they have so much power, including the power to prevent us from knowing when they are incompetent, that I think there should be more of a professional culture of regular rotation out of the Supreme Court seats. Anyone who's been there twenty years should do some serious soul-searching and should not be treated with kid gloves by the rest of us. But many of the lawprofs who are too nice to them now were themselves the very law clerks who did the shielding and got the power themselves. Something is very wrong with this!
And Rehnquist has been on the Court for over thirty years!
I don't think Justices should be treated with kid gloves, either. Bad decisions should be savaged and ridiculed. The beating Souter is taking now that his name has become shorthand for "mistake" warms my heart. Though I'm a little disgusted with the gay speculation popping up again.
I just don't think age matters. And I don't think assuming incompetence where no proof exists is fair. How's Rehnquist's mind? He doesn't have brain cancer. What does thirty years have to do with anything? Why twenty years? Why not 19 or 21? Show me where age has hurt the court.
And we're looking at it from a different perspective. Where you see the hubris of Justices feeling indispensible; of power addicts -- I see men and women of deep principle who get the stakes and -- right or left -- with the best of intentions want to shape the direction of the country for as long as they can. I admire that.
What deeply principled well-intentioned patriot, either liberal or conservative, could blithely step aside and hand the wheel to another they're not sure of? Especially if chosen by a President from another party?
I couldn't. And I wouldn't want someone on the court who could. I want them going down with their fists balled. And I don't care how they smell. And won't until I see how old age is hurting the court.
Now, liberals are hurting the court. That's not an affliction I'd mind seeing regulated.
I read a report a while ago about some psychologists who had studied people who had varying levels of competence at some task. The incompetent people tended to greatly overestimate their competence...essentially they were too incompetent to recognize their own incompetence. Might be some of that at work here.
Also, most people are afraid of death, and retiring from a lifetime sinecure means facing the fact that it's closing in. That could take more courage than a lot of people have.
Smilin' Jack: I don't know how old you are, but I think younger people are much more afraid of death than older people. I think by the time you're 80 and sick, you've thought about it enough that the thought of dying doesn't cause the needle on the fear-o-meter to make the slightest twitch.
There is no Justice who annoyed me more than Thoroughgood Marshall. I disagreed with almost everything he did. But everyday he stayed on that court giving us conservatives fits -- I admired him more. That man believed in something and he fought for it. He loved this country as much as I do -- we just disagreed on what was best for it.
And he hung in there as long as he could. And you know, it might not have been him hanging on grasping for power. How do we know he didn't dream of retiring for a decade of puttering and gardening? How do we know he didn't "sacrifice" his golden years for his country after Reagan was elected?
His duty is to his country not himself or the chattering classes. He did his duty.
I'm ready to believe that about Marshall before I believe it was about power.
Now, I wish he'd never been put on the court. But I won't paint him as some grasping old man with nothing to back that up. I picture him as a patriot taking his responsibility seriously enough to have as long an effect on America as possible.
He was wrong. But he was a good man and a patriot.
What is happening now that requires or suggests that a Constitutional amendment relating tenure of Article III judges is appropriate?
The stories about judges hanging on in their dotage have been told since the beginning of the Republic.
While there are some instances of lack of judgment, for the most part the system has worked because peer pressure and what Ann has called in earlier posts "shaming" has been successful in causing turnover. The grim reaper, of course, has played its part as well.
I think this cry for change is somewhat overblown. It sounds very similar to the cries for turnover at the top of businesses and professional partnerships
over the past 20 years.
It does not seem to me that Justice Rehnquist has displayed any intellectual insufficiency in his present state. Having lost his wife to cancer several years ago, his job is probably the only thing keeping him mentally and emotionally sharp.
I admire his tenacity and courage.
I really think the problem is turnover, and all of this is a cover for that discussion. When life expectancy was, say, 68, appointing 9 Justices to life tenure at 50 nets to two new Justices per presidential term. Today, it is closer to one, and if life expectancy goes to 112, as it may in the next generation or two, that nets to one Justice per two presidential terms.
On the other hand, this world is changing awfully fast right now. Expecting someone over a century old to cope adequately with the changes we see is expecting, IMHO, way too much.
Can't remember where I saw the discussion. Here? Volokh? But a suggestion was made that the reason that opinions are getting so convoluted and split is because of the clerks. Apparently, when there were far fewer clerks, there were a lot more clean opinions, say just a majority and a single dissent. Not these decisions today where you have to have a flowchart to determine which Justice agreed with whom on which parts.
"But each had a chance to leave gracefully, at a normal retirement age,"
I look forward to "The Globe" using that sentence in a story about: Larry King, Ben Bradlee, Mike Wallace, Helen Thomas... After all these are the Grand Disseminators of information in America. After all, that's a solemn responsibility!
Absent evidence of mental incompetence or an incapacity to complete the tasks (e.g. by sleeping), there have been no good reasons offered here to change the current lifetime appointment. Because lack of insight is inherent to dementia, the rules should certainly be updated to address that issue.
But the rest of this argument is an ancient one. Attempts to wrest power from elders can be seen in court cases and family letters dating back to the American Revolution. From the codger's point of view, the young are in a mighty hurry to slough them off.
Too bad we have no judicial ice floes.
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