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Competency on the Court

by Hannah Reilly, CMC '22 | Senior Student Manager

The average age of a Supreme Court Justice serving on the court today is 67 years old. Justices commonly remain on the Court well into their eighties because the American Constitution allows them to hold their position for life, given good behavior. Even this stipulation is negligible, as no Supreme Court Justice has ever been successfully impeached. The process would involve clearing a near-impossible bar: approval by a majority of the House and a two-thirds supermajority of the Senate. Additionally, as people enter the later decades of their life, their competency becomes a valid question. Allowing Justices well into their eighties to make decisions that carry major implications for the nation is both irresponsible and senseless because of their inevitably declining mental faculties. 

Justices’ ages clearly affect their conduct: Ruth Bader Ginsburg, who is currently 86 years old, fell asleep during two State of the Union addresses. This lack of professionalism from such a powerful individual is ill-advised. If a Justice cannot dedicate their full attention to an hour-long speech, their ability to remain attentive during arguments lasting approximately the same amount of time is called into question. Justices have made decisions that influenced who can vote, who can enter the country, who can spend money on presidential elections, and who receives health care, among other things. Each of these decisions has the potential to impact the everyday lives and well-being of millions of individuals domestically and internationally. Supreme Court Justices write history and their influence is not to be taken lightly. Why wouldn’t we want the most mentally capable Justices presiding over these cases? The fact that one mentally incapable Justice could sway the laws, norms, and entire future of our nation is unacceptable. 

Further, life appointments lead to a problematic lack of turnover on the Court. Justice William O. Douglas, for instance, refused to retire after a stroke severely impacted his faculties. Upon returning from medical leave, he served one final year as a Justice. During this year, he frequently addressed people by the incorrect names, arrived at illogical and incoherent conclusions, and fell asleep during oral arguments. According to Jeff Jacoby’s Boston Globe article, after retiring, he would often show up at court and furiously claim to be a sitting justice. This is a perfect example of why a life appointment is unreasonable. Justices quickly approaching dementia should not only be encouraged, but also expected to retire from their position. Justices are also not infallible, and like most others, they cannot objectively evaluate their mental state and recognize the necessity of retirement. 

Some argue that older Supreme Court Justices gain valuable knowledge and experience that younger Justices lack. Mandatory retirement ages would inevitably lower the experience level of the Court, which may have negative implications on the quality of the Court’s decisions. However, while younger Justices may lack experience, they are more well-versed in the current state of affairs than many of the older justices. For instance, they possess more knowledge of the ever-changing world of technology than judges born in the 1930s. As modern legal issues develop around issues like data privacy, Supreme Court Justices need to understand the sort of technology they are dealing with. Furthermore, they were educated much more recently with the most developed legal knowledge, the newest information, and the most current science and technology. Justices born well before World War II should not be making decisions that will have the heaviest influence on the lives of those born eight decades later. If we care about the impact of the Supreme Court, we should ensure that Justices with the best knowledge on the current climate, norms, and culture are making these significant rulings. 

Although the Supreme Court lacks preemptive measures to deal with the declining mental state of judges, lower courts have enacted solutions. The Economist reported that the Ninth Circuit Court of Appeals has been particularly proactive in establishing prudent practices. It holds regular seminars to teach its Chief Justices about the indications of cognitive impairment and encourages them to resign if they identify these signs. They encourage judges to undergo regular cognitive assessments and specify which friends or family members they would most trust to intervene if concerns about their competency arise. The Court also provides a hotline where judges and court staff can discuss signs of cognitive decline they have identified in their colleagues. The Supreme Court should follow suit. 

Many have already called on Chief Justice Roberts to implement mandatory psychological screenings for federal justices. However, the Constitution is vague on the responsibilities and powers of the Chief Justice, which may explain his lack of action on the matter. Others have proposed introducing recommended judicial retirement ages, while more radical individuals want a constitutional amendment to enforce eighteen-year term limits for justices. 

The problem ultimately lies in the political nature of the Supreme Court. Even though a Justice may recognize their incompetence, they will refuse to step down until they are sure they will be able to endorse their successor. This is likely the reason why Ruth Bater Ginsberg refuses to leave the Supreme Court at the age of 86 after a number of spells of ill health; she cannot allow President Trump to appoint another conservative Justice. In many ways, it is the same reason that any Justice stays on longer than they ought to. It is a form of political protest against the newcomer. And as long as we continue to appoint Justices for life, this sort of behavior is inevitable. In the meantime, Ginsberg, and all other Justices, will continue to make decisions that affect over 330 million lives. Given the gravity of their positions and their demonstrated reluctance to retire, we must limit the terms of Supreme Court Justices. While Justices deserve to be immune from political pressures, the negative ramifications of life appointments greatly outweigh its benefits. If we truly value the sanctity of the American government, we must ensure each branch is operating at its fullest potential. We need to prevent incompetence within the Supreme Court. We need to end life appointments. 

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