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Did Justice Ginsburg Repeatedly Fall Asleep During Yesterday's Session of the Supreme Court?--

Here is part of Tony Mauro's account of yesterday's session of the US Supreme Court:

When Scalia was reading his own opinion Stevens occasionally shook his head in disbelief. And Stevens jousted back. With emphasis on the word "genuine," Stevens said that "a genuine judicial conservative" would not have inserted the Court into the "political thicket" of the gun rights debate as Scalia had done.

Through it all, the rest of the Court seemed either calm or exhausted on this, the final session of the Court's term before it adjourned for the summer. Wakefulness escaped Justice Ruth Bader Ginsburg repeatedly throughout the Scalia-Stevens confrontation, and Justices Stephen Breyer and David Souter seemed to be struggling to stay awake at times as well. In fact Stevens, age 88, seemed to be the only dissenter with any spark or vigor. Chief Justice John Roberts Jr. smiled broadly as he opened the session, and Justce Clarence Thomas, who often seems bored or disengaged on the bench, seemed unusually animated.

Am I reading Mauro correctly? Did Justice Ginsburg "repeatedly" fall asleep on the bench during yesterday's session of the Supreme Court?

To reduce the strain on our increasingly elderly Court, might we consider term limits? Steve Calabresi and my article on this issue can be downloaded from the bottom of this SSRN page.

UPDATE: If 18-year term limits had been instituted long ago, half the Court (all of them Republican appointees) would already be gone and Justice Thomas would be stepping down next year. Justice Ginsburg would be serving for 3 more years.

The idea is not that most justices are unable to do their work (though in recent decades perhaps a quarter of them have been unable to do their work competently during their last year on the Court). And the oldest justice, Stevens, is reportedly in excellent physical and mental health; if I were Justice Stevens, I'd keep going to set the record.

The question of when to retire is one that each justice should make for himself (or herself) based mostly on personal preferences. But the question for designers of a judicial system is what patterns of tenure lead to the best Court. The point should be to get a Court filled with justices at or near their peak in performance.

2d UPDATE: I had no idea that Justice Ginsburg had fallen asleep on the bench before -- indeed, fallen asleep during argument — and that the mainstream press failed to mention it, just as the press covered up some of the sleeping on the bench and mental confusion of some elderly justices in the late 1980s.

FantasiaWHT:

With emphasis on the word "genuine," Stevens said that "a genuine judicial conservative" would not have inserted the Court into the "political thicket" of the gun rights debate as Scalia had done


What a fascinating observation, given that Scalia's opinion attempts to limit the control politics can have over gun rights.
6.27.2008 11:32am
jps:
Since Breyer and Souter apparently also were falling asleep, maybe there was a week of late nights at the court. Souter and Breyer are no older than the 72 year old Justices Scalia and Kennedy. Your post belies an arrogant anti-liberal political bent, and is inappropriate, especially since the young Justice Thomas is no pinnacle of boisterousness.
6.27.2008 11:33am
zzzzz:
Not the first time. Final day and all, I'm sure the Justices pulled some all nighters this week.
6.27.2008 11:35am
trad and anon:
It's not like anything important was happening. There were no oral arguments.
6.27.2008 11:36am
merevaudevillian:
A similar allegation was made two years ago.
6.27.2008 11:39am
M. Gross (mail):
At the risk of piling on, I think this is kind of an inappropriate jab. If Ms. Ginsburg feels that the job is overwhelming, she is certainly free to resign on her own. There wasn't an real need for her to stay awake and alert the entire time, she'd probably heard these exact arguments multiple times over the previous weeks.

Joining the Supreme Court is just about an obligation to your idealogical "side" to serve until your last breath.

I imagine several of the more liberal members of the court will retire during President Obama's term, or serve until dead or incapacitated should McCain win.
6.27.2008 11:41am
david's lats:
Guys in my high school used to fall asleep in class all the time, it was no big deal.
6.27.2008 11:44am
Wahoowa:
david's lats FTW.
6.27.2008 11:47am
Richard Aubrey (mail):
The less capable they get, the more easily they can be manipulated by their clerks.
And nobody vets the clerks except the justices. Or, their clerks.
6.27.2008 12:04pm
Kevin Raley (mail):
As long as she didn't lay her head down on the bench and wake up later with a large pool of drool under her face (as used to frequently happen to unnamed people at my high school), I don't think she did anything inappropriate.
6.27.2008 12:09pm
Charlie (Colorado) (mail):

To reduce the strain on our increasingly elderly Court, might we consider term limits?


Not until Congress isn't dominated by Democrats and Republicans.
6.27.2008 12:12pm
OrinKerr:
To reduce the strain on our increasingly elderly Court, might we consider term limits?

Wasn't that Roosevelt's argument for the court packing plan?
6.27.2008 12:17pm
Paul Milligan (mail):
"There wasn't an real need for her to stay awake and alert the entire time, she'd probably heard these exact arguments multiple times over the previous weeks. "

Kindly name for me some other job of similar importance ( or at least, of high importance', where that attitude is taken regarding executives during public meetings ? Or private ones ? 'Don't worry about the CFO, he's just catching a few zzz's while we talk about this shit again'... he had a late night this week' ???

"Guys in my high school used to fall asleep in class all the time, it was no big deal."

Yeh, that's a pretty good comparison to SCOTUS Justices during public session :-)

"I imagine several of the more liberal members of the court will retire during President Obama's term, or serve until dead or incapacitated should McCain win."

Silly me, I thought they were supposed to ignore day to day politics, and take a larger view of the law. My bad.
6.27.2008 12:22pm
r78:
You mean that Ginsberg was not scintillated by listening to Scalia or Stevens drone on each read his opinion?

Perhaps Thomas will get so animated that he will finally screw up the courage to ask a question during oral argument someday.

What a joke.
6.27.2008 12:25pm
Federal Dog:
It would be a profound and essential reform to impose term limits on all judicial appointments. The same issues that plague schools because of tenure plague the bench for much the same reasons. There is no compelling counterinterest -- including the inevitable loss of some skilled, ethical, and disciplined people from the bench -- that even begins to compensate for damage done by lifetime appointments.
6.27.2008 12:25pm
emsl (mail):
Can somebody explain why this relic of the past -- reading opinions -- still goes on? Perhaps when it took substantial time for opinions to be published and available it made sense, but now it seems totally pointless.
6.27.2008 12:30pm
vassil petrov (mail):
Can somebody explain why this relic of the past -- reading opinions -- still goes on? Perhaps when it took substantial time for opinions to be published and available it made sense, but now it seems totally pointless.

We have abandoned it in Contitnental Europe (though the law still keeps it as a possibility). And the Strassbourg Court said that the practice of not delivering opinions orally in the Highest Courts of the member states to the ECHR does not infringe the party's right to have the decision of case "delivered publicly".
6.27.2008 12:48pm
Bob from Ohio (mail):
Term limits for all federal judges is an excellent idea.

The lifetime tenure is a relic of an age where people died earlier and the financial prospects for ex-judges were less. With generous pensions and law firms falling over themselves to get ex-Supreme Court justices in particular, they just don't need the protection of lifetime tenure. Plus, turn over would be good for the country.

20 years seems like a good term.
6.27.2008 12:54pm
vassil petrov (mail):
I may have unduly high regard towards judges and confidence in old men's (and somethimes women's)wisdom and sense of justice, but I really think prof. Lindgren's link to his controversial de lege ferenda article in a post that starts with some journalist's gossip as somewhat improper.
6.27.2008 12:54pm
Bart (mail):
Justice Ginsberg has been fighting health problems and is the most likely potential vacancy for the next President to fill.
6.27.2008 12:57pm
Dave N (mail):
Bart,

Or Justice Stevens, because, well, he is 88.
6.27.2008 1:11pm
starrydeceases:
So, we have two years for Representatives, with no term limits.
Four years for Presidents, with a two term/ten year limit.
Six years for Senators, with no term limits.
Lifetime for Justices.

I propose 12 year terms for the Justices, and eight year terms for the lower courts.

All offices should be limited to four terms maximum, plus a half in the case of the Presidency.

We need more stability in the Executive, less incumbency in the Legislature, and less senility in the Judiciary.
6.27.2008 1:12pm
FWB (mail):
Does "during good behavior" permit falling asleep on the job (or at the wheel)? Why is a failure to do one's duty not considered "not good behavior"?

We don't need term limits, we need public servants willing to do the job and we need other public servants ready to administer the proper sanction of removal when behavior is not "good".
6.27.2008 1:35pm
James Lindgren (mail):
I should point out that I was among the only law professors to call (in a public conference) for Chief Justice Rehnquist to step down, with my statement qualified only by the caveat that his health was indeed as bad as it appeared to outsiders to be.

I have not made a similar call for Justice Ginsburg to resign because falling asleep is not, by itself, strong enough evidence of inability to warrant a negative conclusion by someone not privy to any inside information on her health.

It is, however, a cause for concern, one that should be covered in the press.
6.27.2008 1:53pm
vassil petrov (mail):
Does "during good behavior" permit falling asleep on the job?

Yes, it does. An ageing Judge that becomes phisically or mentally less capable to perform his or her duty is not behaving badly in any way. There is simply no fault involved. There must certainly be ways to remove such a judge (with the right to appeal and with full pension rights and so on), but nevertheless ageing, being tired, or overlwelmed by the job is not bad behavior.

Why not empowering the Chief Justice to refer the judge or Justice to a commission - half judges, half doctors, and then accorning to the opinion of the commission the President and the Chief Justice by joint order remove the judge or Justice?
6.27.2008 1:56pm
Dennis Nicholls (mail):
Orin beat me to it...

IIRC FDR was going to appoint a "helper Associate Justice" to assist all members of the USSC over the age of 70. I'm sure George Bush would have no problem getting the Senate to go along with this idea now. After all, don't the "liberals" go along with everything FDR propose? Maybe George Bush could suggest Bob Bork as a "helper Justice" for Justice Ginsburg.
6.27.2008 2:03pm
Suzy (mail):
What a silly cheap shot. Respect levels are falling accordingly.
6.27.2008 2:11pm
JoshL (mail):

The lifetime tenure is a relic of an age where people died earlier and the financial prospects for ex-judges were less.


You mean like John Marshall, who died at 79 and was Chief Justice for the last 34 years of his life?
6.27.2008 2:15pm
Tony Tutins (mail):
Catnapping when your attention is not required is a wonderful skill -- one awakes refreshed and raring to go. I first encountered this with a young PhD co-worker who would fall asleep in the back of the car when we all went out to lunch. The amazingly creative and productive Thomas Edison was notorious for catnapping. Here, Justice Ginsburg's attention was not required, she had read and heard the material several times before, and the justices' droning was conducive to sleep, so why shouldn't she yield to temptation? In contrast, as the author of the dissent, Justice Stevens had more of a stake in listening to the others.
6.27.2008 2:20pm
Alex Blackwell (mail):
In contrast, as the author of the dissent, Justice Stevens had more of a stake in listening to the others.

The dissent was assigned before oral argument?
6.27.2008 2:38pm
Bob from Ohio (mail):

You mean like John Marshall, who died at 79 and was Chief Justice for the last 34 years of his life?


I meant on the average. Life expectency in 1789 was 20 years lower than now.

Jefferson and Adams lived even longer. I suppose the upper clases lived longer than the population in general.

Roger Taney lived along time too. Not everyone is John Marshall.
6.27.2008 2:46pm
p3731 (mail):
What a self-evidently silly cheap shot.
6.27.2008 2:57pm
PubliusFL:
Alex Blackwell: The dissent was assigned before oral argument?

Don't be silly. Tony was saying Stevens had more of a stake in listening to the oral summaries of the other opinions at a hearing where he would be orally summarising an opinion himself.
6.27.2008 3:02pm
Hoosier:
There are worse things one could do on the job when covered with a large robe.
6.27.2008 3:05pm
ejo:
level of respect? why is it we have this quaint notion that the Justices are "owed" respect? prior to appointment, they were just lawyers (or lower court judges)-what respect was necessary for them then. I don't think that senators or reps are owed respect. I don't think you need to respect any governmental officer-yet the black robed nine automatically become learned or wise no matter how stupid the inanities that flow forth from them?
6.27.2008 3:08pm
Alex Blackwell (mail):
Tony Tutins/PubliusFL:

My apologies. I should have read more carefully. I see that Tony was referring to the opinion announcement and not oral argument.
6.27.2008 3:15pm
Marshall was average (mail):
I would refer you to this, which demonstrates that justices have always served long terms and lived to old ages. What has changed recently is the disappearance of the "short-term" justice, who leaves after just a few months or years of usually undistinguished service on the bench.
6.27.2008 3:29pm
Suzy (mail):
ejo, if you're referring to my comment about respect levels dropping, that applies to Prof. Lindgren for posting this nonsense, and not to the Justices. Nevertheless, I believe in the radical idea that everyone is owed respect, at least until they start taking unfounded cheap shots on the mistaken assumption that the elderly are prone to mental incompetence. Where's the evidence she was asleep or even just drowsing off enough to neglect her duties, in either of the cases mentioned above? I see none.
6.27.2008 3:42pm
hattio1:
For those who think (assuming she did fall asleep) that Justice Ginsberg was derelict in her duty, does that mean we should re-think the notion that a lawyer in a capital case falling asleep during trial is not necessarily prejudicial? Surely any aspect of trial (especially falling asleep in front of a jury) is a more important aspect than listening to a decision that has already been made and cannot be changed.
6.27.2008 3:52pm
Brian G (mail) (www):
As long as Ginsburg is in lock stop with her cohorts at the ACLU, she could go into a coma on the bench and the press would support her clerks propping her up and voting for her.
6.27.2008 4:13pm
SupremacyClaus (mail) (www):
Professor: Please, show us how sleeping through arguments, reading of decisions, or even while writing an opinion, how is Ginsburgh's sleeping in any way detrimental?

The less Ginsburgh participates in SC activity, isn't the reverse true, quality goes up?
6.27.2008 4:25pm
SupremacyClaus (mail) (www):
The SC lifetime appointment was one of the few whoppers made by the god-like Founding Fathers. In their defense, senile dementia had yet to get described for another 100 years.
6.27.2008 4:32pm
Suzy (mail):
I think it's one of the smartest decisions they made, actually. Not all old people are wise, of course, but some special kinds of wisdom do come with age. Not all judges that serve a long tenure are good judges, but good can come from longer experience in the job. You also see less political maneuvering in the timing of things, like when to appeal or hear certain cases, than you would if the terms had a particular end date (witness what happens in both leg. and exec. branches at the end of a Presidential term in office like this one, for comparison).

Assuming that most justices are bright people who will serve responsibly, on the whole I think more good than harm results from this policy. Can we, in fact, account for much clear damage being done so far, because of this policy? You'd think if it were such a danger, it would have caused worse problems already. Anyway, in this country we are so confusedly youth-obsessed. It might seem obvious to many that "peak performance" comes at a younger age, or tapers off as we grow elderly, but it's not at all obvious to me. Barring actual physical damage to the brain, which can happen at any age, where's the evidence that good reasoning and wise judgment are reduced as we get older, rather than unchanged or even increased?
6.27.2008 5:13pm
Kazinski:
Can't Lindgren pimp a schollarly paper he did a few years ago, with Steven Calabresi!, without raising hackles? He didn't go out and pre-date the article and fake the publication in Harvard Journal of Law and Public Policy. When an event like that is noted in the press, and a blogger has published anything on the subject whether a blog post or a published article in a prestigious journal, sure as the sun comes up in the morning then they're going to make note of it.

I'm no fan of Lindgren (I like his posts, his published work that I've read, and his numeracy, but I find him insufficiently partisan), however in this case he certainly should get a pass. After his shocking admission yesterday that Stevens is his favorite justice, he is rapidly using up all his goodwill.
6.27.2008 5:20pm
Federal Dog:
"Assuming that most justices are bright people who will serve responsibly"


Terrible assumption. They are political appointments.
6.27.2008 5:30pm
Christopher M (mail):
I'm 29 and I have trouble staying awake sometimes while sitting and listening to long speeches, so I'm not sure what the big deal is supposed to be. A lot of what the Supreme Court does is kind of boring, after all. I'm not sure I'd want someone in the job who thought otherwise -- they'd have to be some kind of hyperdriven screwball I think.
6.27.2008 6:43pm
Fub:
Federal Dog wrote at 6.27.2008 4:30pm:

[quoting Suzy at 6.27.2008 4:13pm]"Assuming that most justices are bright people who will serve responsibly"

Terrible assumption. They are political appointments.
In California, SC justices stand for reconfirmation by popular vote periodically. That's about as political as it gets.

Around 1976 California's Commission on Judicial Performance recommended that Associate Justice McComb be removed from the Supreme Court. The reasons were
...the associate justice was suffering from chronic brain syndrome (senile dementia) detrimental to the performance of his judicial duties, of wilful and persistent failure to perform such duties, and that his disability was (or was likely to become) permanent, ...
Justice McComb appealed. Further complicating the process, while the appeal was pending, a relevant section of the state constitution was amended to require an appointed tribunal from the appellate division selected by lot to rule on matters of removal.

A seven member tribunal was selected from the state's appellate division. The tribunal upheld the Commission's recommendation, but not its finding of "wilful and persistent failure to perform such duties". Justice McComb was removed from the bench.
6.27.2008 6:58pm
Thomas_Holsinger:
I certainly agree with an 18 year limit for federal judicial service, but anecdotal evidence of justices and judges falling asleep on the bench is not an effective argument for it. For age alone, I'd prefer a different rule aka amendment, perhaps something like mandatory "senior" status beyond a certain age (like 75) at which point judges/justices would sit only by appointment of the chief judge/justice. I believe something like this already exists, by voluntary choice, for federal district and appellate judges.

The federal bench also badly needs a means of mandatory internal discipline and suspension for cause. The absence of such a system impairs public respect for the federal judicial system.

As for federal judicial term limits, I refer people to Supreme Court's initial, disastrous, federal criminal sentencing ruling of about five years ago (I forget the case name). That one was so rank that ALL the judges on one of the federal circuits signed a letter asking the Supremes to clarify it because they couldn't understand it.

I.e., the biggest argument for federal judicial term limits is that life terms, coupled with increasing life spans, has resulted in a federal bench which is so disconnected from real life, real legal practice, etc., that they are not merely clueless, but dangerous to the public interest.
6.27.2008 7:30pm
Ian Argent (www):

I meant on the average. Life expectency in 1789 was 20 years lower than now.

Jefferson and Adams lived even longer. I suppose the upper clases lived longer than the population in general.


Careful there - low average lifespans during historic times were often as not due to the appalling (to 20th century Americans) child mortality rates. If you made it to adulthood and didn't take up a dangerous profession, you were good for your biblical "three-score and ten" or more without raised eyebrows.
6.27.2008 10:41pm
Elliot123 (mail):
How about an 18 year term limit for tenured professors? After 18 years, tenure expires, and they have to go through the same process again to have it reinstated. Maybe it is reinstade; maybe it isn't.
6.27.2008 10:49pm
Thomas_Holsinger:
Elliot123,

Law professors are subject to mandatory retirement at about age 65. The good ones then go to Hastings for its Over-65 Club. I had Eldridge for torts there, Hall for criminal law, and Richard Powell for Deeds, Trusts, Wills &Estates. They were great.
6.28.2008 12:33am
TruePath (mail) (www):
I never could stay awake through classes in college and it had nothing to do with age. Just as some people are afflicted with insomnia others of us fall asleep more easily, Heck, if my mother stays up after 10pm without coffee she will literally fall asleep while talking (it doesn't happen to her before her bedtime so it's not narcolepsy just being tired and falling asleep easily).

It really pisses me off when people try and suggest falling asleep like this indicates laziness or insufficient dedication/concentration. Some people are just strongly affected by listening to long unengaging lectures just as others fall asleep after a glass of wine. Moreover, while I can't stay awake through a lecture that is intellectually unengaging if it's a forum where I can prompt with the occasional question (as the supremes can) I don't have the slightest problem.
6.28.2008 2:29am
TruePath (mail) (www):
Ohh, and I suspect the mainstream media aren't 'covering it up.' Rather they probably found it unremarkable as they have probably dozed off (or gotten close) during some supreme court business themselves.
6.28.2008 2:31am
TruePath (mail) (www):
One last thing. I think the lifetime appointment of supreme court justices is an excellent choice.

The supreme court serves as a check on the fleeting passions of the electorate. The longer their terms the better they can serve as a bulwark against unconsidered repudiation of our basic values. Moreover, experience is as important for justices as is being young and sharp.

Now what about giving them very long but fixed length terms? Well there are several problems with the suggestion. For starters it would make the retirement of justices too predictable and thereby increase the role selection of judges plays in presidential elections. The more politicized judges are the less of an independent check they can provide.

But what about the harms of aged judges or the tendency of presidents to choose very young justices to maximize their tenure? Well if a couple justices are less than sharp it might shift close cases but that's no worse than the appointment of 'bad' justices and not a significant problem. And the appointment of young justices means that the justice likely has more of a chance to develop on the bench than an older appointee.
6.28.2008 2:43am
PostNoBill:
The solution is a more robust impeachment process. Judges may be impeached and removed for lack of good behavior. Senile judges do lots of things that are not "good behavior" for which they should be removed.
6.28.2008 8:35am
Heh:

For starters it would make the retirement of justices too predictable and thereby increase the role selection of judges plays in presidential elections. The more politicized judges are the less of an independent check they can provide.


I can't see how the role can be increased any more than it already is. We're not going to get independent judges anymore; we *might* get judges that shift in their beliefs over time, but the initial appointments will be given to judges believed by the appointer to hold their views and values. And that appointer will always sell the ability to fill vacancies on the court to the electorate as a reason to be elected.
6.28.2008 11:05am
bush sr screwed one up (mail):
Maybe Justice Ginsburg suffers from narcolepsy. If that's the case she qualifies under the Americans with Disabilities Act for special treatment, and the Supreme Court should be paying her medical bills.

I suspect that if the other Justice Ginsburg had made it to the bench in the 80's, he would have been dozing off for other reasons.
6.28.2008 10:40pm
Eli Rabett (www):
Ah yes, as opposed to Ronald Reagan who fell asleep for his second term.
6.29.2008 10:30pm