Law professor: Ginsburg’s ongoing absence is ‘the price of life tenure’

While some critics have accused Supreme Court Justice Ruth Bader Ginsburg of clinging to the bench long after her failing health should have forced her into retirement, a recent op-ed from University of Chicago Law Professor Daniel Hemel makes the case that extended absences from the bench are a necessary byproduct of the lifetime tenure granted to federal judges.

“That’s the price of life tenure, and it’s worth paying,” Hemel writes.

The case for the telecommuting justice

In his piece, published by Politico, Hemel takes painstaking care to enumerate the many reasons that the status quo of lifetime service should be protected. In a system where judges often don’t retire until they reach their 80s or 90s, long convalescent leaves are not only acceptable, but required, he says.

What should happen if Ginsburg remains sick for another month — or even longer? “Nothing!” writes Hemel. “History is full of Supreme Court justices who were incapacitated—or worse. That’s the price of life tenure, and it’s worth paying.”

In a manner characteristic of a professor of law, Hemel provides a historical precedent for supporting Ginsburg’s prolonged sick leave. First, he cited several examples of “‘mental decrepitude’ on the high court,” documenting several cases where there was a “substantial time lag between the onset of mental deterioration and a justice’s retirement.”

Perhaps the earliest example of cognitive decline on the Supreme Court belongs to Justice Henry Baldwin, who remained on the court for more than a decade after his 1832 hospitalization for “incurable lunacy.” More recently, Justice William Rehnquist continued serving on the high court even after he tried to escape from a Washington hospital in his pajamas, Hemel reported.

Insane in the membrane

Despite these examples, Hemel reaches a surprising conclusion. “No justice—no matter how deranged—can do serious doctrinal damage without the acquiescence of at least half his colleagues,” he wrote.

Even if a justice is too mentally detached to break a tie, argues the jurist, then the court can proceed with an even number of justices.

More importantly, however, Hemel insists that the proposed solutions for dealing with an aging judiciary are fraught with complications. He dismissed the idea of term limits, arguing that the 18 years of service proposed by some advocates would be unproductive:

[Frank] Murphy had been on the court for only eight years when his apparent drug dependence reached its height. [Charles] Whittaker finally suffered a nervous breakdown less than five years into his term. And the Rehnquist pajama incident occurred just nine years into his 33-year tenure.

With 18-year terms, a seat on the Supreme Court would open up every two years, ensuring that the long and grueling confirmation process — witnessed most recently during Justice Brett Kavanaugh’s embattled nomination — would become a regular occurrence.

Hemel demonstrates how justices are frequently loyal to the president who appoints them, becoming less partisan in their later years. But with term limits, a two-term president would install a minimum of four justices, vastly expanding the authority of the executive branch, Hemel writes.

Similarly, Hemel contends that judges would become less cooperative if they serve with fellow justices for a shorter period of time. “Justices who anticipate that they will interact with each other year after year can expect a concession in one case to be reciprocated later on,” he explained.

More problems

Hemel also has a problem with setting a mandatory retirement age for many of the same reasons demonstrated by imposing term limits. Murphy experienced his disability in his 50s, and Rehnquist was hospitalized for a sedative addiction at the prime age of 57, Hemel said.

The idea of a 12-judge panel determining whether or not a justice can continue serving is equally unpalatable to Hemel. He believes that such a panel would become subject to political infighting, in much the same way that the political branches joust over the confirmation process.

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“Fixed terms, age caps, and forced retirement are all strong medicine for the problem of judicial disability,” Hemel argues. He believes that Ginsburg, who is working from home as she recovers from surgery, is in a state of health that “pales in comparison with the ailments that have afflicted many of her predecessors on the bench.”

“The fact that the court has faced, and survived, the much more serious impairment of several of its members suggests that the problem of judicial disability, while undeniable, is also manageable,” Hemel concluded.

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