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Monday, May 13, 2019

The Permanent Disability of a Justice

Here is part of a question that I posed to my Constitutional Law class. Suppose Justice X suffers a stroke and his left alive but without any cognitive function. Justice X's family members are appalled at the prospect that he might be replaced by President Y. They invoke some statements by Justice X that he would not want to be replaced by President Y. Consequently, they decide to keep Justice X alive until President Y is no longer in office.

Two years later, President Y and his supporters argue that this situation is a disgrace. The Court needs nine functioning members! More darkly, they say that Justice X's seat should be deemed vacant. The President nominates a new Justice and the Senate (controlled by his party) confirms the new Justice. She shows up at the Court to take the oath. What happens then?

Turns out that there is no textual authority on this question. Vacancies on the Supreme Court are created by death, retirement, or resignation. There is no precedent for a seat to be declared vacant without one of these two events. (One Justice resigned in 1861 to join the Confederacy. Had he not resigned, I presume he would have been swiftly impeached and removed.)  

Posted by Gerard Magliocca on May 13, 2019 at 09:16 PM | Permalink


I think Professor Kerr's question points the right direction. If someone is (literally) incapable of fulfilling the oath of office, their "nonbehavior" is not "good behavior." "Good behavior" seems implicitly defined by the other standards for impeachment ("high crimes and misdemeanors"), and it seems to me that total nonfeasance falls inside that rubric.

Consider the same Justice who isn't sick/disabled, but merely adicted to playing Candy Crush 24/7. He or she shows up at the office; he or she participates in oral argument even less than Justice Thomas does now; he or she participates in conferences even less than Justice Thomas does at oral argument. Basically, he/she is there but fails to do anything related to the duties of the office. It seems to me that such total nonfeasance is not "good behavior"... and then we're getting into the harder question of whether disability/medical inability excuses it under relevant law and relevant humanity. (Presuming, of course, that "humanity" is ever relevant to the continued functioning of government, and I don't really need to tag that as sarcasm, do I?)

Posted by: C.E. Petit | May 14, 2019 10:56:56 AM

Interesting issue or scenario indeed, but the respectable author of the post, ignores a very important and fundamental doctrine in administrative law, which is:

"Inherent power", or: "residual power ". Those doctrines, lies on the concept, that not everything can in advance be legislated or predicted of course, and residual issues ( suddenly emerging ) and internal management, is up to the executive branch to decide on. Provided indeed ( as heard by "residual" ) that:

No explicit law and practice, dictates what is the action and by whom, to be taken.

Now, one may claim, that is such case, the president of the Supreme court, has the inherent power, and residual power, to decide on the branch he is responsible for(ultimately ).

In fact, Article III, dictates that:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior......

That is to say, that someone, needs to retain responsibility for the behavior of judges ( federals ). If there is no such official duty prescribed ( like disciplinary tribunal and such ) then, it would be, the president of the Supreme court.

So, unless somebody, may come, with clear and legal prescribed law and procedure, it would be up to the president simply, to decide, proprio motu so. Yet, also can be reviewed by the Supreme court ( the decision of the president) with judges sitting as a panel, but not including the president himself. And their judgment, would be the final one (all this, if would be challenged of course).


Posted by: El roam | May 14, 2019 5:56:18 AM

Sorry -- confirm, not affirm.

Posted by: Orin Kerr | May 13, 2019 11:11:02 PM

Am I right that Congress could if necessary impeach and remove a Justice who has no cognitive function on the ground that the Justice is not showing "good Behaviour"? If so, I would think this can come up only if Congress won't impeach and remove the old Justice but the Senate will affirm the new Justice. That could happen, but it's at least a somewhat specific set of conditions.

Posted by: Orin Kerr | May 13, 2019 11:10:34 PM

Closest example to this I can think of was in the early 1970s when Justice Douglas became unable to perform his duties but was unwilling to resign and allow President Nixon to appoint his replacement. The other eight justices agreed among themselves that no decision would be issued in which his vote (which presumably was controlled by his clerks) provided the margin for the majority.

Posted by: PaulB | May 13, 2019 11:08:26 PM

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