Senility v. Impropriety

Do Supreme Court justices worry more about appearing senile than they do about appearing unfair?

Justice John Paul Stevens recently told Inside E Street * that shortly before he retired last year, he worried that he could be “working beyond the time when I would be able to do the job properly.” He further explained that when he had announced his dissent from the bench in the Citizens United case in January 2010, he’d stumbled over his sentences, and was concerned that “maybe I was changing in ways I hadn’t recognized.” It was the first time, he said, that “I had some trouble articulating what I wanted to say.” As the year went on and he turned 90, he decided to retire. 

Now he has regrets—sort of. “I may have jumped the gun a little bit” when it came to calling it quits, he told Inside E Street. “I’m sure that the way the last year has gone, I would have been perfectly capable of continuing the job.” The most striking part of the interview is that Stevens had a sort of informal compact with (now-retired) Justice David Souter, that each would warn the other when it was time to go. When Souter retired in 2009, Stevens said half-jokingly, “I lost my guarantee of someone who told me what to do.”

A heated public conversation along similar lines has taken place in recent weeks over Ruth Bader Ginsburg, who at 78 is facing awkward calls from some liberals to step down so that President Obama can appoint her replacement while still in office. “There is no indication that Ginsburg is slowing down on the job, even after she underwent surgery two years ago for pancreatic cancer that her doctors said was detected at a very early stage,” writes Mark Sherman of the Associated Press.  But some liberals, the story says, want her to “put self-interest aside and act for the good of the issues they believe in.” Writing for Bloomberg View, Stephen L. Carter traces the history of this “creepy passion” that reflects “the insidious hope that the justices one party likes will retire while their side still has the opportunity to replace them.” It’s not just party zealots who demand that justices step aside to be replaced with younger, hotter models. As Carter reminds us, in 1980 officials in the Jimmy Carter administration evidently pressured Justice Thurgood Marshall to resign before the Senate flipped from Democratic to Republican. An outraged Marshall refused to budge.

One of the most important lessons of the “creepy passion” about judges and mental competence is that it’s quite clear the justices fear nobody will tell them when they are losing it. Surrounded by young clerks and worshipful staff, the justices are less than confident someone will offer up the unvarnished truth—even when it hurts.

All this public hand-wringing over mental competence stands in sharp contrast to the almost complete lack of concern about an equally pressing judicial issue: recusal. While the justices are quite open about discussing their fears of overstaying their welcome on the job, they are loath even to consider questions about whether they have been compromised by financial or personal dealings with parties to the cases pending before the court.

Justice Clarence Thomas has been dogged for at least a year by claims that his wife’s work for the opponents of health care reform (and her financial remuneration for that work, which Thomas failed to disclose) raised serious ethical questions about whether he should hear the appeal of the challenge to the law that will inevitably come before the court. (Conservative lawmakers have attempted to manufacture a corresponding conflict of interest on the part of Justice Elena Kagan that seems predicated on the idea that since she recuses herself from everything else, she should keep doing that.) But when called upon to comment on their extracurricular speech-making, conclave-attending, and closed-door talking about unspecified ominous threats to “liberty,” the justices are not only silent, but defiant. The appearance of senility seems to be a larger worry than the appearance of impropriety.

Even those who have not been accused of conduct unbecoming to the highest judicial officers in the land leap to the defense of their colleagues when it comes to inappropriate or partisan public behavior. At the Aspen Ideas Festival last month, both Justice Stephen Breyer and former Justice Sandra Day O’Connor took the position that the judicial recusal questions represent, in Breyer’s words, “a false issue.” O’Connor assured the audience that “if there’s a real question, they’d discuss it with their colleagues.” Yet looking at the ways in which the justices have become increasingly polarized, politicized, and outspoken (and Ginsburg has been perhaps most outspoken on the question of outspoken-ness) there seems to be a widespread agreement on the court that the justices are acting out—and an equally widespread agreement to do nothing whatsoever about it.

Certainly many justices are haunted by memories of colleagues who stayed on the bench long after they had become ineffective. Court scholar David Garrow has described chilling scenes of William O. Douglas, returning to work after a debilitating stroke, “call[ing] people the wrong name and utter[ing] non sequiturs,” and falling asleep at oral argument. Still, it’s strange that justices who can be so vigilant and cautious about the possibility of overstaying their time on the bench, and how that affects the credibility and integrity of the court, can be so willfully blind to the ways in which their speeches, relationships, and strong rhetoric sow precisely the same kind of doubt about the court. As my friend Jeff Shesol reminded us recently, the court holds its legitimacy in its own hands. Justices engage in controversial extrajudicial conduct not at their own peril; since they sit for life, the reputation they put at risk is the court’s.

There is nobody on the current court who is senile, infirm, or even close. But there seems to be some sense among the justices that they cannot trust their own judgment about when that line is crossed. That is why it’s doubly worrisome that there are some sitting justices doing as much damage to the perceived legitimacy of the court off the bench as any senile old man could ever do while on it. Shouldn’t they be applying the same self-scrutiny to questions of bias, and the appearance of bias, that they apply to matters of mental competence? Being old is not the same as being judicious. The justices should worry less about the former and more about the latter.

Correction, July 20, 2011: The article originally stated that John Paul Stevens’ comments appeared in AARP magazine. They were in fact from the television program Inside E Street. ( Return to the corrected sentence.)