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Thursday, October 12, 2006

A 25th Amendment for Judges?

I teach a seminar on the Supreme Court (a ton of fun, by the way), and this past week's topic for discussion was the decision to leave the Court.  There have been many abuses of life tenure since the early days of the Court's history, well described in books by Art Ward and David Atkinson.   I take the facts forming the basis for the rest of this post from those books.) Among other instances, Justices Field and Grier had to be asked to leave by their Brethren, and Justice Marshall overstayed the time during which he was not, as he put it, "coming apart."  Until retirement provisions were enacted, many Justices stayed past their prime because leaving the Court would have meant foregoing necessary income.

Perhaps the worst example of a Justice failing to leave when the time for doing so came, was Justice Douglas's refusal to retire until November 1975.  He had had a stroke, was paranoid and incontinent, and could not function in any way approaching normal.  His disability was so severe that the rest of the Court (excepting Justice White, who protested the action of his colleagues privately) effectively negated Justice Douglas's votes in cases, refusing to issue decisions in 5-4 cases where he was in the majority.

I am uncomfortable with the technique the Court used in Justice Douglas's case, though I can understand the predicament.  I wonder, however, whether it would be possible to construct a decent systemic answer to question when to end a Justice's term without either impeachment or adopting a more radical constitutional amendment, such as one giving Justices a term of years or adopting a mandatory retirement age, that have significant disadvantages and probably would have little chance of passage.

I would like to see something akin to section 4 of the 25th Amendment.  That section provides an elaborate mechanism for stripping the President of power when he is unable to execute the duties of the office and does not himself see fit to step down.  If the Vice President and a majority of the heads of the executive departments transmit to the President pro tem. of the Senate and the Speaker of the House a declaration that the President is unable to perform, the VP shall assume the powers of President. 

A similar mechanism can be adopted for Supreme Court Justices, requiring a super-majority of sitting Justices to announce their conclusion that the Justice in question is no longer fit for office.  Lower-court judges could have a similar rule, requiring super-majorities of their courts, plus the Chief Justice, to make the declaration.

Chief Justice Hughes adopted a secret ballot system among his children, requiring that he be informed only of the result of the voting if ever a majority of his children thought it time for him to step down.  Perhaps as an internal (necessarily non-binding) agreement, the Court could adopt the same system, with each Member in the electorate voting on each colleague's disability.

One of the great aspects of our government is how few times we have had to put provisions like the 25th Amendment, section 4, into practice.  Surely the same would be true for either of these two proposals.  But the Douglas episode shows that some such rule may well be wise for extraordinary circumstances.

Posted by Michael Dimino on October 12, 2006 at 05:03 PM in Constitutional thoughts | Permalink


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» Blog Round-Up from SCOTUSblog
At the Georgetown Law Faculty Blog, Marty Lederman continues the discussion of 2005's decision in Cutter v. Wilkinson which was begun here by Steven Goldberg. At PrawfsBlawg, Michael Dimino asks if there should something like the 25th Amendment for Jud... [Read More]

Tracked on Oct 13, 2006 4:14:46 PM

» Term Limits, US Supreme Court Style from NOTLEGALROADKILLYET
Here in Colorado, judges, former judges, lawyers, editorial writers and just about everyone except the voters oppose Amendment 40, term limits for appeals court justices. I had to laugh today when I found this law blog discussing ways to get rid of... [Read More]

Tracked on Oct 15, 2006 9:08:06 PM


For me it's a 10 year sitting limit for any elected official at all levels and branches of governemnt, and an age limit of 75. When the infirm and feeble are holding an office, the real travesty lies with Clerks and Assistants who are not elected and are unknown to the general Public, making the decisions for them. Yet with only an approximate participation rate of 25% in our Democracy by the People, the branches of government are left solely to themselves to police themselves.

Posted by: goesh | Oct 24, 2006 11:41:27 AM

It is a complicated consideration, Simon. I was reminded of one Supreme Court session I viewed during Eisenhower administration with a few dozing Justices.

Another reconfiguration of the bundle of worries which occurred to me was the Scotus in-camera politics of factions becoming accentuated by the foreknowledge of fixity of terms...we can erode Brown now, but Breyer's 15-year term ends in 2012, so we wait until after that to erode Kelo...Kennedy's term is over in 2007 so Bush-II will have a chance to appoint, say, a Pombo, as a replacement, so we may revisit Rapanos on the 2008 docket.

I like the life term because it renders moot all these hypothetical intrigues, though humans have a penchant for such schemes. I understand several nations are satisfied with the fixed term supreme court. Our lifetime appointments have served well as a buffer against politics, although the Court exists in a milieu, to be sure.

Viewed longterm, I think our system actually to be fairly nascent. It bears observation, closely; but the natural mellowing that comes with life tenure on the Supreme Court, for most Justices, has appeared to create moderation and occasionally has fostered the best American sort of brilliant jurisprudence.

We are at a time now, nationally, facing some global shifts in how nations associate. We certainly appear in for an adventure short term now at the Supreme Court. I could cite several current and new laws which will reverberate there profoundly, but that is for a different discussion; indeed, some the executive branch review has yet to be written. It will be.

I just read the announcement of the ACLU convention currently taking place (now past tense the day I write this) in Washington, DC, with Justice Scalia keynote speaker. Maybe someone there will ask him what he thinks about healthcare and delimited terms for members of the Supreme Court. Suppose someone were to suggest Associate Justices have fixed terms, but a Chief Justice, a life appointment; or, CJ +2 Senior Associate Justices life terms.

Posted by: John Lopresti | Oct 18, 2006 11:31:18 PM

Simply devising a fixed term as a solution is one approach; but some alternative way involving medical and psychiatric practitioner scrutiny as confidential inputs for the Chief Justice's deliberation process on personnel matters could be an appropriate enhancement for end of life, end of term particulars.The instant you make judicial tenure conditional on a judgement call, you create an open invitation for the abuse the perception of abuse, neither of which help the legitimacy of the judiciary. Remember Reagan's quip to his surgeons when he was shot? "I hope you're all Republicans." If Justice Breyer, for example, is suddenly retired after a medical evaluation and six months later the doctor has a yard sign supporting GOP candidates, how is that going to help the legitimacy of the judge confirmed to succeed Breyer? We can all imagine the reaction of ACS, People for the Soviet Way, the kossacks and so on.

I think it has to be some kind of fixed term. It's ultimately less important whether that fixed term is life or some arbitrary number of years short of that, but my view must be that while the length of the term can reasonably be changed, the basic supposition should be one of unconditional tenure. Anything else is manifestly a threat to actual judicial independence and the perception of legitimacy that rests on it.

Posted by: Simon | Oct 15, 2006 7:17:16 PM

Speaking of the ebb, eight months ago this article appeared regarding various federal courts' policies for managing end of life for their judges who have lifetime appointments. Clearly, politics interfered in some of the examples cited in the linked item. Such ploys would be more magnified at the US Supreme Court, whether the reason for end of life processing be actual death or various disabilities; absent a fair and impartial mechanism for assessing the health status of the Justice. For the present, I think the current Chief Justice has ample skills to guide SCOTUS personnel matters in this regard. Count me among the brave individuals who admire the lifetime appointment guarantee for Justices on the Supreme Court.
However, I have other concerns; the cited link by Bashman regarding the anectdotal incidents of posthumous voting seems outrageous; but, too, I worry about our civilization's broad reliance on health maintenance pharmaceuticals for function and longevity of life. Simply devising a fixed term as a solution is one approach; but some alternative way involving medical and psychiatric practitioner scrutiny as confidential inputs for the Chief Justice's deliberation process on personnel matters could be an appropriate enhancement for end of life, end of term particulars.

Posted by: John Lopresti | Oct 15, 2006 3:47:11 PM

Steve Calabresi and Jim Lindgren have a recent article on this sort of thing here.

I think the better solution -- if indeed the present situation is a problem in need of solution -- is to say that Judges or Justices serve one non-renewable term of 14, 18, 21, __ years (pick a number) retire at or before that time on the same terms as they do today. That would seem to get as close as possible to preserving the logic of life tenure without introducing all manner of potential concerns (it is hard to imagine the Court behaving today in the event that, for example, Justice Ginsburg ceased to function, as it did when did Justice Douglas, and I think that Robert Link's comment attacks the wrong side but with the right charge).

It seems to me that the best argument for abolishing life tenure has nothing to do with getting rid of judges who are already there: rather, it has to do with the political realities of seating new judges. Both political parties want to appoint a Rehnquist, a Clarence Thomas, a John Roberts, a Bill Douglas - someone who is brilliant, certainly, but also someone who is young and who is going to have a long tenure on the court. Even if tommorow, Justice Stevens retured and the entire country decided that, yes, Robert Bork was right all along, Bork isn't going to get nominated, because - with all due respect - he's not going to serve twenty, thirty years on the court. So I see having not term limits, but terms, period, as having the salutory potential to abolish what has become a de facto age test for nominees that robs the court of a pool of immense potential talent.

Of course, with Our Hero having just celebrated twenty years on the court, I am at the perigee of my support for limiting the terms of Justices. ;)

Posted by: Simon | Oct 15, 2006 12:53:36 PM

Since the constitutional amendment must be modest to be ratifiable (makes 25th Am type proposal tough) and since there are in any case systemic disadvantages to term limits and retirement ages, why not submit justices to annual physical examinations after the age of 65. If the tests are weak, a committee would be named by the president to review the exam. If that committee found the facts sufficient to recommend removal, the Congress would need to approve its findings by a simple majority, just like impeachment.

The mere existence of such an examination and process would encourage many wobbly justices to depart with grace.

The president is not in for life and the VP and cabinet are his subordinates, so Sec 4 of the 25th Am is an extraordinary situation procedure. Elderly justices are not only with us but quite normal given the regime in place. A system which pits colleagues against one another is probably inadvisable for comity reasons.

Posted by: CFI | Oct 15, 2006 12:10:34 AM

My idea is to expand the court to fifteen justices, with nine hearing any one case in the first instance (and a possibility of rehearing en banc, but with rehearing being granted as rarely as it is now by SCOTUS). That way, recusals, temporary leave for a medical condition, and other such exigencies won't be so hurtful to the court's functions. (i.e., Justice Kennedy having to recuse himself on a major case because it involved his neighbor, or Chief Justice Roberts having to recuse himself on Hamdan because he heard it on circuit)

Posted by: Ed Unneland | Oct 15, 2006 12:07:14 AM

Perhaps such a mechanism is already available. See the fascinating article in the most recent Yale Law Journal, "How to Remove a Federal Judge," http://www.yalelawjournal.org/pdf/116-1/PrakashI.pdf .

Posted by: elektratig | Oct 14, 2006 4:02:30 PM

A similar mechanism can be adopted for Supreme Court Justices, requiring a super-majority of sitting Justices to announce their conclusion that the Justice in question is no longer fit for office.

Truly admirable that we could make such suggestions when the makeup of the bench seems already so one-sided. Is this really a power we want in the hands of a Scalia or a Thomas---or anyone else for that matter? Is it a nice idea in the ideal? Sure. Would it end up being abused along partisan lines? Of course.

Posted by: Robert Link | Oct 13, 2006 6:13:15 PM

Douglas, though, got better: he eventually retired but then was well enough to want to return to the Court (but he obviously couldn't). Perhaps what's needed is a way for a Justice to be on "medical leave"?

So perhaps what we need is not a way to force Justices to step down permanently, but a way for a Justice to be relieved -- or to choose to be relieved, voluntarily -- temporarily. The main problem is that a Court of 8 would be deadlocked in a lot of controversial cases.

Maybe the Court of 8 could be given the option of temporarily "promoting" a lower-court federal judge -- akin to a District Judge sitting by designation on a Ct of Appeals -- to replace the ailing Sup Ct Justice? I'd require a three-fourths vote of the Sup Ct (i.e., 6 of 8 Justices agreeing) so that a bare majority doesn't get to appoint an ideologically simpatico lower-ct judge.

Posted by: Scott Moss | Oct 13, 2006 11:23:12 AM

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