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.
What a fascinating observation, given that Scalia's opinion attempts to limit the control politics can have over gun rights.
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.
And nobody vets the clerks except the justices. Or, their clerks.
Not until Congress isn't dominated by Democrats and Republicans.
Wasn't that Roosevelt's argument for the court packing plan?
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.
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.
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".
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.
Or Justice Stevens, because, well, he is 88.
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.
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".
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.
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?
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.
You mean like John Marshall, who died at 79 and was Chief Justice for the last 34 years of his life?
The dissent was assigned before oral argument?
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.
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.
My apologies. I should have read more carefully. I see that Tony was referring to the opinion announcement and not oral argument.
The less Ginsburgh participates in SC activity, isn't the reverse true, quality goes up?
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?
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.
Terrible assumption. They are political appointments.
Around 1976 California's Commission on Judicial Performance recommended that Associate Justice McComb be removed from the Supreme Court. The reasons wereJustice 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.
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.
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.
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.
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.
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.
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.
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.