LESS THAN TWO MONTHS before he died, Chief Justice William Rehnquist issued a statement firmly denying the "rumors of my imminent retirement" and announcing that he would remain on the job "as long as my health permits." That July 14 statement included no information about his medical condition. It was something he didn't talk about -- not to the country and apparently not even to his colleagues.
Justice David Souter told The New York Times this week that he had thought Rehnquist's health was improving and was shocked when he died. But he acknowledged the "unconscious anxiety" that had been hanging over the Supreme Court since Rehnquist was diagnosed with thyroid cancer last fall and spent more than four months undergoing surgery, radiation, and chemotherapy. "Even after he returned to the court," the Times reported, "the chief justice did not discuss his condition or prognosis with his colleagues."
By all accounts, Rehnquist was a very private man, not given to unburdening himself for public consumption. "I've always admired Robert E. Lee for his refusal to write his memoirs," he once told C-SPAN's Brian Lamb. Like every citizen, the chief justice was entitled to a generous zone of privacy. Certainly no reasonable person would have wanted to see the reserve of a very sick man thoughtlessly or insolently violated. But Rehnquist was also a powerful public official, and issues of legitimate public concern were riding on his mental and physical abilities. Wasn't the nation entitled to know something about his medical situation, and how it might be affecting the work of the highest court in the land?
The Constitution grants life tenure to federal judges, and Rehnquist was under no legal obligation to step down because of illness -- not even an incurable cancer that was visibly robbing him of his strength. But there is growing support, both public and academic, for abolishing life tenure on the high court, and cases like Rehnquist's are part of the reason why. As life expectancy has grown, and as the Supreme Court has become ever more powerful, justices are staying in office much longer than they used to. Charles Evans Hughes, who served as chief justice from 1930 to 1941, found it "extraordinary how reluctant aged judges are to retire." In the intervening 70 years, the problem has only grown worse.
It is now almost routine for justices to cling to power long past their prime. Some, like Rehnquist, become physically debilitated. Others decline mentally. "Mental decrepitude among aging justices is a persistently recurring problem," the historian David J. Garrow has written. And it "has been an even more frequent problem on the 20th-century court than it was during the 19th."
Toward the end of Justice Thurgood Marshall's tenure, for example, he relied on his law clerks to do most of his work, while he spent hours telling stories or watching TV. Court staffers said he "often seemed uninformed and disengaged" -- as during one oral argument when his hopelessly befuddled questions made it clear that he didn't know which side was represented by which lawyer. A different kind of incapacitation was Justice Frank Murphy's addiction to Seconal and Demerol, two prescription drugs. His dependence grew so pronounced, Garrow writes, that some of his closest acquaintances were sure he was buying drugs illegally. Of course this affected his work; in at least one case, "Murphy's" opinion was concocted in his absence by his law clerk and two of the other justices.
There are other problems with life tenure: Little or no democratic accountability. Bitter confirmation battles, since the stakes -- a justice who may hold office for 25 or more years -- are so high. Falling productivity, with today's geriatric court generating only half as many full opinions as the court did two or three decades ago (even though the justices hire twice as many law clerks). Remoteness from the workings of the real world, including the judicial system over which they preside.
In his annual report on the judiciary last January, Rehnquist, an unbudging defender of life tenure, insisted that "for over 200 years it has served our democracy well and ensured a commitment to the rule of law."
But many legal scholars disagree, and have proposed either a mandatory retirement age, or appointing justices for fixed terms. An AP poll last year found 60 percent support for ending lifetime tenure -- with people older than 65 most likely to favor mandatory retirement. Past attempts to limit Supreme Court terms have fizzled, but in a post-Rehnquist era, the winds may shift.
"Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence," one highly regarded legal observer has noted. "It would also provide a more regular and greater degree of turnover among the judges."
The author of those words: John G. Roberts, President Bush's nominee to succeed Chief Justice Rehnquist. He wrote them in 1983, when he was a lawyer in the White House counsel's office under President Reagan. The case for ending life tenure on the high court was solid then; it is even more compelling 22 years later. Someone should ask Roberts to elaborate on it when his confirmation hearings begin next week.
(Jeff Jacoby is a columnist for The Boston Globe.)
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