I know, I know, you all have expertise on what the 25th Amendment (the "25th) to the Constitution says (or can Google it). Otherwise known as the Presidential Disability Amendment, the 25th establishes a formal process to (among other things), recognize the temporary disability of the sitting president, allowing for the Vice-President to "step in" as Commander In Chief and President while the sitting president recovers (or not) from his/her disability. Although the 25th has only been used to fill a vacant Vice-Presidency (Gerald Ford replacing Spiro Agnew), we have fortunately, not had the Amendment activated due to the incapacitation of a sitting president. My point however, is that it was important enough to address the matter in a Constitutional Amendment as previous presidents did serve while experiencing incapacitating events (Wilson - stroke, Eisenhower - heart attack, Reagan - gun shot wounds). But what process do we have in place for temporarily or permanently disabled Supreme Court justices? Okay, cue the big exhaled "huh?"
According to Article III of the Constitution, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior..." Knowing the Framer's intended Supreme Court justices serve for life (See Federalist 78), did they intend on them serving while incapacitated? They obviously did not consider such events, since they too did not address the issue of incapacitated presidents (the 25th was not ratified and added to the Constitution until 1967). But is it coming close to the time we address the issue if a Supreme Court justice clings to his/her position (as is their right) 'till death, regardless of possible cognitive or mental decline (dementia, Alzheimer's, stroke)? Should there be a mechanism to protect the American public from clerks making decisions and writing arguments for members of the Court that can no longer properly function in their positions?
As someone who wraps himself in the Constitution and has virtually considered the United States Supreme Court the pinnacle of legal expertise (I have been licensed to go before SCOTUS since 1989), I am only now beginning to reconsider how "righteous" this bench can be if some members of the Court are reaching "difficult" years of ill health (both physical and cognitive). Should there be some mechanism to have a Justice "temporarily" relieved of their duties if they have become incapacitated? Should there be some mechanism that allows for the replacement of a Supreme Court Justice if they are permanently disabled, yet have not chosen to step down from the Court?
Two weeks ago, Justice Anton Scalia wrote a dissent in a case. So? Justice Scalia writes a lot of opinions. So what you ask? So what because Justice Scalia while quoting his own earlier decision, had the facts from that earlier decision backwards, rendering a portion of his entire argument flawed. Once the error was noticed, Scalia was allowed to "correct" his written decision, but not until after his mistake was initially published. Some pundits took ahold of Scalia's mistake as a sign of his obvious political partisanship - arguing he tailors his judicial decisions to fit his political ideology rather than the facts at hand. While additional pundits piled on to attack Scalia for his obvious error, his supporters moved quickly to denounce the attackers and defend him. But those attacking and defending Scalia have agreed that an error was in fact made. So how could it be possible Justice Scalia made such a mistake when writing his opinion (or have his bevy of staffers and law clerks miss the mistake too)? Which leads me to the obvious question. How many errors can a Supreme Court justice make before questions can be raised about their mental capacities? (See; http://www.politico.com/story/2014/05/scalia-gets-his-facts-wrong-in-epa-dissent-106226.html).
Now I'm not advocating removing Justice Scalia or any other justice. I am simply asking whether there should be a mechanism to ease a justice out of their Judicial seat if they are suffering disabling illnesses - while refusing to resign from the High Court? Yes, their appointments are for life, but we know many of us are living beyond our capabilities to function (let alone run major corporations, teach, or actively sit on the Bench). And please do not accuse me of ageism. As I age, I hope to become wiser, yet I appreciate some limitations are moving inevitably closer.
Take a look at our current Supreme Court. Justice Ginsberg is 81 and has already served on the Court for over 20 years. Justice Scalia is 78 with over 22 years of service and will be pushing 81 when the next president takes office. Justice Kennedy is pushing 78 and will be over 80 by the next inaugural. Justice Kennedy has already served over 26 years. Justice Breyer is pushing 76, heading into his 20th year on the High Bench and Justice Thomas already has served on the bench over 22 years! My point is simple and has nothing to do with age. It does though, have everything to do with Justices serving for life, even if they no longer can meet the obligations of the job. Unlike the 25th Amendment, there is NO mechanism to allow a Justice to temporarily deal with a disability, or to recognize a permanent disability has rendered them incapable of serving. The Constitution makes no exception for being brain dead or seriously incapacitated. As we all live longer, should we not begin to consider the real possibility of Supreme Court justices refusing to resign, even though they can't remember what they ate the day before?
I know this may sound like some form of coup over the Supreme Court, stripping the institution of its political insulation (and I am not necessarily advocating any such particular mechanism). And if you think such action could lead to an impermissible theft of judicial independence, what would you call it if a sitting Justice is just that, sitting - while his staff and clerks ghost write all of his/her opinions, pulling the strings from behind their chair(s)?
I merely raise the issue because it may become very important in the years to come. Should there be a mechanism (like the 25th - "Presidential Disability Amendment") to remove or replace a sitting Supreme Court justice that has been medically determined to be mentally/cognitively incapacitated short of them voluntarily resigning or simply dying? The 25th Amendment provides such a procedure for a president. As President and former Supreme Court Chief Justice William Howard Taft once wrote; "Presidents come and go, but the Supreme Court goes on forever." I doubt he meant the Justices themselves do too. Have a great week!
Shout out to my parents, Jean and Phyllis Rubin on their 64th Wedding Anniversary! Get well Dad! Also a Happy Birthday to my son, Nathan on his 24th Birthday!