With Justice Ruth Bader Ginsburg’s recent hospitalizations and Justice Antonin Scalia’s sudden death in 2016, public attention has been understandably glued to the health of the Supreme Court justices. And with the ideological balance of the Court ever at risk, the stakes of an illness can unnerve any partisan.

A number of suggested reforms to the Supreme Court could mitigate those concerns. One is term limits, which would give every president a chance to appoint at least two new justices, with a new member never more than two years away.

That would eliminate the need for justices to work through serious health issues, which they often do to stay on the bench in order to outlast a president of the opposing ideology from appointing more justices.

Other reforms, like regular medical exams and a judicial network monitoring health would also improve the problem.

Background On The Trend

According to Gabe Roth, the executive director of Fix the Court, the Supreme Court is often vague about the justices’ health.

“If there’s a missing justice for whatever reason, the Court will announce what that reason is, but otherwise it’s mum on the justices’ health,” he said.

And that lack of transparency is a problem because a justice’s health can impact their ability to work.

This year, Ginsburg has been absent from the bench while recovering from lung cancer surgery. She’s returned, and says she intends to continue serving.

That’s the story of a few Supreme Court justices.

Chief Justices William Rehnquist had thyroid cancer in 2004 and 2005, but he continued to participate in Court business and voted in most of the cases he missed.

In 1949, Justice William Douglas broke 14 ribs and was in recovery for almost six months, but he returned to the Court. He did it again after he suffered a stroke in 1975.

It Doesn’t Have to Be This Way

Roth said there are other ways to solve the problem, too. He pointed out that presidents and presidential candidates receive regular medical exams, and the general results are publicized.

During the last congressional session, Roth said a bill passed the House Judiciary Committee would have instituted similar rules for federal judges.

The law, part of a larger bill, calls for judges 81 and older to have medical exams every year, for those between 70 and 81 to have them every two years, and for judges 70 and younger to have them every five years.

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“To my knowledge, this measure is not being brought up in the current Congress,” Roth said. “Given that there’s certain members of Congress that were concerned that bringing up such a notion of medical exams for one branch would lead to public concern over a lack of medical exams for another branch.”

Still, he thinks the transparency is a good idea. In 2016, Roth said he worked with a reporter to ask justices about their health after Donald Trump released his medical reports and Hillary Clinton left an event because she felt unwell.

“Chief Justice Roberts wrote back a letter on behalf of all of them being like basically ‘we’ll tell you what the state of our health is when a need arises,’” Roth said.

Cognitive Abilities

Physical health isn’t the only concern when it comes to the Supreme Court, though. After all, mental decline in older adults applies to the justices, too.

“I think it’s a very realistic [concern],” Roth said. “I mean, in about every generation of justices, there has been documented evidence of a Supreme Court justice who has been intellectually diminished in some way.”

After Douglas’ stroke, he refused to retire for almost nine months and the other justices agreed that any time he would cast a tie-breaking vote, they would hold the case over to the next term or not issue an opinion for a few months.

Similar mental stability concerns surfaced with Thurgood Marshall, William Brennan and Oliver Wendell Holmes Jr.

Roth said it’s an unpleasant truth, but it’s one people need to face.

“It sucks, but it’s a fact of life,” he said. “I think that not acknowledging this scientific fact only imperils the third branch from carrying out its constitutional mandate.”

Respectful Ways to Respond

There are solutions to address that problem. Roth said the Judicial Wellness Committee that exists on the Ninth Circuit Court of Appeals is a good model.

“It’s a group of judges on a standing committee that creates certain policies that promote health and promote awareness of health,” Roth said.

First, there’s a hotline that people can call into for advice about steps to take and how to approach the situation if they see a colleague slipping.

The circuit also hosts a seminar with sessions led by neurological experts who talk about the signs of aging, so everyone is aware of what to look for.

There’s also a buddy system. Roth said colleagues are supposed to keep an eye on each other and, if they notice major issues like significant lapses in memory or attention, they’re supposed to report it to the chief judge.

“It’s tough,” Roth said. “You know, you don’t want to be trying to push out one of your colleagues and you don’t want to worry that you’re overstepping your bounds in terms of how you interact with your colleagues. But on the other hand, you want to be sure that everyone is up to the task.”

There is no blanket policy for these issues. Roth said each circuit is able to make their own rules, and while some have their own methods, others have integrated the Ninth Circuit plan.

“The judiciary is different from Congress because, in Congress if you believe that someone who represents you is slipping cognitively, you can vote them out in two or six years. If you see that happening in the presidency, you have the 25th Amendment,” Roth said. “For the judiciary, you only have impeachment and less than a dozen judges in American history have been removed through impeachment.”

Why This Is Important

In 2016, Justice Scalia died and a bitter fight over filling his seat erupted between then-President Barack Obama and Senate Majority Leader Mitch McConnell. The Court was stuck at eight members for months.

Many justices risk their health and put off retiring because of the president who would replace them.

Roth said term limits are one solution to mitigate the possibility of vacancies, but ultimately everyone should support initiatives that help aging members of the judiciary.

“There are plenty of people, plenty of judges, who worked well into their 80’s or 90’s who are fully capable of the job,” Roth said. “But again, ignoring the problem isn’t going to solve it. And we know that throughout the history of the federal courts, there have been judges who have slipped over time and there are ways to mitigate and prevent that.”

 

by Nikoel Hytrek
Photo via Flickr
Posted 9/6/19

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