Until he passed away last week, 80-year-old William Rehnquist had been in obvious failing health with thyroid cancer. The frail chief justice had vowed nobly to stay on the court until he was no longer able. Given the nature of a lifetime appointment, it was his call — even though he had recently missed five months of work and a tracheotomy made it difficult to understand his voice. He died on the job.
The nomination of John Roberts to replace Rehnquist, the speculation surrounding the successor to Justice Sandra Day O’Connor and the political dynamics of confirmation hearings will dominate court news for a while. It would be easy for the issue of mandatory retirement to fade from public discussion until, say, 80-year-old Justice John Paul Stevens takes ill.
The issue cannot continue in such an ad hoc fashion. We’ve already had justices who were certifiably senile (Stephen J. Field in the 1890s) and obviously incapacitated (William O. Douglas in the 1970s). It should be an irreconcilable incongruity that we can both revere the institution that is the Supreme Court of the United States and permit occasional compromise of its integrity. There’s a reason that Florida judges are required to step down at age 70. It’s that important.
Some historians and law professors have suggested a mandatory retirement age of 75. Perhaps, but the problem with that – as with any arbitrary number — is that you force out those still at the top of their game. Maybe mandatory mental acuity evaluations – starting at 70 or 75 would have merit. If that seems unbefitting the highest court of the land, well, consider the indecorousness of Justice Douglas dozing through arguments.
It’s one thing for Supreme Court justices to want to choreograph their departure and synchronize their retirement with a given presidential cycle. If they’re healthy, they’re entitled.
But if they’re incapacitated, it can’t be their call. It’s not fair to the law and the country.