Paul Carrington has an interesting Op-Ed in the N.Y. Times today. In it he discusses the retirement (or lack thereof) of members of the federal judiciary. He writes:
You may have heard that justices and other federal judges enjoy “life tenure” — something that is easy to believe when the average age of the Supreme Court justices is 69. However, Article III of the Constitution says only that federal judges, both of the Supreme Court and of lower courts, can retain their offices as long as they maintain “good behavior.”
This seems to imply that the justices have a duty to retire when they are no longer fit to work full time. That duty is a rule in some countries: Britain, for instance, forces judges to retire at 70.
There is also a mandatory retirement rule for state court judges in 23 states.
Carrington’s solution is to institute a system of panels allowing citizens to file grievances against the justices. The panel would not be able to remove a justice, but could advise them to step down if they were found unfit to serve. If a justice (inevitably) refused to do so, the panel would submit a recommendation for impeachment to the House of Representatives.
Of course, the issue with this system is this: IF a justice was in-fact too old or frail to serve, their conduct would not necessarily rise to the level required for impeachment (The Constitution provides that judges “shall hold their Offices during good Behavior,” and at minimum this standard seems to imply a dereliction of duty). If it did, it is likely that the House would go ahead and impeach them anyway.
A panel would simply be a busywork project for government. Undoubtedly, every time a contovertial decision came down from the court, grievances would be flying left and right against the justices in the majority. Most of these grievances would be entirely unfounded, of course, but the panel will be forced to investigate them all to determine their merits.
With a docket that amounts to around 75 cases per year, and only 7 individuals to monitor, Congress could do a fine job of monitoring the justices directly, and hopefully is doing so.
Carrington cites the failing health of Justice Rehnquist in his article as evidence that justices carry on too long. It is true that Rehnquist may have been able to more comfortably handle his cancer treatments had he not been active on the court, but there is no evidence that his attempts to remain on the job in any way injured American citizens.
Update: another take on the issue from The Confluence questions Mr. Carrington’s motives…
Pingback: Senile Supremes