My understanding is a legal guardianship is more restricted. For one thing, it’s subject to ongoing monitoring by the court system. And the decisions you make on behalf of the person has to be shown to be in their best interest and not just something that they would have been legally allowed to do.
I’m pretty sure the Constitution is silent as to the resignation of a Supreme Court Justice, but I think you’re pointed in the right direction.
As to the President, it seems clear that a legal guardian would not be able to resign on his behalf due to incapacity, because the 25th amendment sets forth a specific procedure for dealing with that circumstance. The question is, then, what do we infer from the absence of a 25th amendment for judges? Does that mean that a legal guardian would have the power to resign on the Justice’s behalf, or that no one would?
An originalist would say that no one has that power (and that the remedy is impeachment). The Framers were intent on insulating federal officials from local interference, and they likely would have balked at the suggestion that some county family-court judge could effectively engineer the removal of a Supreme Court Justice. Other interpretations might say that the ordinary law of guardianship would apply, treating the Justice’s constitutional role as incidental.
Personally, I think impeachment is the only option, but there’s really no precedent to go by, and there might be circumstances so extreme that everyone essentially agrees to removal by some easier means.
It is the same as impeaching any other Civil Officer of the United States. House impeaches; Senate tries the impeachment; 2/3 requires for conviction.
Curiously (setting aside the now commonplace view that “high crimes” has no meaning other than the political will of Congress), the Constitution doesn’t seem to contemplate impeachment to address incapacity of the office-holder. The 25th Amendment deals with it for the President. And, obviously, the President can freely terminate most (all?) other Civil Officers. But Article III judges sit in a weird situation: they can’t be fired and can only be removed for “crimes”.
(Given that these judges serve for life and often until quite old, this comes up with some frequency, although not at the SCOTUS level. There are a bunch of procedures that allow the relevant “Judicial Council” to do things, like asking him to retire, or appointing an additional judge to help with the workload, or ordering (but only temporarily) that he not be assigned new cases. But they can’t remove him. It’s a real (non-partisan) hole in the system).
There was a sad case reported in the Times a few days ago of a judge with diagnosed early-onset Alzheimer’s finally convinced to retire. I didn’t pay enough attention to the article to know if she was a federal or NYS judge.
There was an issue in the USA where apparently it was easy for even a total stranger to go court and have themselves appointed legal guardian for an elderly person (with assets) so as to “manage” those assets for them. I think there’s an episode of the documentary “Dirty Money” that deals with this.
Also, some Alzheimer wards and elder care homes have locked doors, effectively turning the occupant into a prisoner. Presumably the “guardian” can arrange such accommodation given the legal authority.
Then the question is - what’s the situation of a SCOTUS judge who is never in attendance? I assume they cannot be replaced until they finally bite the big one - ring down the curtain and join the choir invisible, at which point they become an ex-judge.
I feel this is mixing two separate issues together. Resigning is a voluntary decision taken by the person who is resigning. The 25th Amendment and impeachment are procedures for somebody else to remove a person from an office. So comparisons to these procedures do not have any bearing on an issue of resignation.
But here’s an argument I’ll throw in. As we’ve established, a durable power of attorney generally allows the person who holds it to make any decision on behalf of the principal that the principal could have made on their own behalf. With, as noted, some exceptions.
So let’s apply this to a Supreme Court Justice. If a case is being appealed to the Supreme Court, it requires four justices to grant a petition for certiorari for the case to be heard. Any Justice can sign the petition.
I’m sure you see where I’m going with this. If my father is a Justice and suffering from dementia and I have his durable power of attorney, can I sign a petition for certiorari on his behalf? It is an action he could legally take. But I think everyone would agree the answer is no. Or maybe “Hell, no!”
Signing the petition is something my father could do as a Justice. It is not something I, a non-justice, can do on his behalf. It’s clearly one of the exceptions to a durable power of attorney.
So the question is whether resigning from the court is an equivalent. It’s a decision my father could make as a Justice. But is it a decision I can make on his behalf? Is resigning a power specifically connected with being a Justice, which is something I am not? Or is resigning from a job a personal decision like deciding to sell a car, which I can do on my father’s behalf now that he can’t make those decisions for himself?
I think that’s right. And that was (as noted) a real issued with Justice Douglas and, more recently with Chief Justice Rehnquist.
Interestingly, (if I read this correctly), for a court other than the Supreme Court, the members of the court can get a replacement judge appointed by certifying to the President that the judge is “unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability”. 28 USC 372. (And then having the President appoint and the Senate confirm his successor). (Interesting opportunity for shenanigans there).
I would read that, pretty convoluted process, as confirming the view that there is no way to remove an unwilling judge other than allowing him to die.
There’s an apocryphal old SCOTUS tale about a young justice, call him Justice Adams, who was prevailed upon to delicately tell an elderly colleague, call him Justice Barnes, that he had become too old, was becoming forgetful and scatter-brained, and just wasn’t up to the job anymore. Adams did, with regret, and the older justice resigned.
Many years later, Justice Adams was himself the old coot who had to go. As before, a younger justice was sent to meet with him and said tentatively, “I have heard, Justice Adams, that some time ago you met with Justice Barnes under similar circumstances.”
Justice Adams glared at him and said, “Yes, and a dirtier day’s work I never did in my entire life, young man…!”
Justice Blackmun, I believe, made a deal with a colleague that they would let each other know if they ever appeared to have become incapacitated or just not up to the job anymore. Blackmun then ended up outlasting that colleague. Justice Stevens made a similar deal with a colleague, as I recall.
He didn’t like Ford because Ford, while in the House, had taken the lead in trying to impeach him: William O. Douglas - Wikipedia
See Woodward and Armstrong’s excellent The Brethren for an interesting account of Douglas’s disability. He was an ornery guy and was completely in denial about it, and even tried to hold a hearing in his (in)capacity as a circuit justice and bungled it, strengthening the argument of those urging him to resign. Retired justices are allowed to keep chambers at the Supreme Court building, and he did, but tried even after his resignation to participate in deciding cases. The Chief Justice had to gently tell him no.
Not quite. Art. III, Sec. 1 says that “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour…” A justice who is not in her right mind, derelict in her duties or outright criminal would not be exhibiting “good behaviour” and, if she did not voluntarily resign, could lawfully be impeached, I believe. As Fretful_Porpentine noted above, there is precedent for it. We would want to be extremely careful, of course, not to use impeachment for mere political or legal disagreements with the justice’s work.
I did some checking on the good behavior clause. Apparently it had a different meaning back in 1789 then it does today. Back then saying you held a position “during good behavior” was understood to mean that you held a position for life unless you were removed by impeachment for criminal charges. This meaning derived from English common law and it prohibited the monarch from removing appointed officials at whim. Removing somebody required that a specific charge be laid against them and Parliament would conduct the hearing to decide if removal was warranted.
Sounds like an interesting story. What happened?
Perhaps. But consider that Pickering was impeached for drunkenness on the bench. And it was widely recognized (at the time) that impeachment for “insanity” posed significant constitutional concerns (indeed, was likely not avaliable) and there was general discussion about needing to amend the constitution to permit the Senate to remove a disabled judge (which it did not permit). In fact, as I understand it, a key “defense” of Pickering in the Senate was that he was “insane” (and therefore not impeachable). You could only expand “misdemeanor” so far–you needed some sort of knowing misconduct.
Indeed, it was pointed out that if the Senate could impeach a judge for anything less than an indictable crime, the judge would merely hold his office (as Senator Plumer put it) not for “good behaviour” but at “the pleasure of the legislature - a tenure fatal to the independence of an important part in the government.” (Considering that Chase was impeached for seemingly political reasons on the same day that Pickering was removed from office, he may have had a point).
Even if “good behavior” includes disability (mental or physical), there is no mechanism to remove a judge for anything other than “high crimes and misdemeanors”. Perhaps (and I cold be convinced) there could be a removal statute enacted for such occasions; but no one appears to have tried it.
Anyway, Pickering is a complicated case. And I understand that the modern view is that judges and executive officers, in fact, hold their offices at the pleasure of the legislature. But the procedural and substantive contortions around the Pickering impeachment doesn’t make me think that anyone thought that judges could be removed for mental disability (although everyone agreed that Pickering – who appears to have been a very decent judge until some mental decline – had lost it).
This sounds like something perhaps the US Executive Branch should have imported about 4 years ago.
LSLGuy that it is unconstitutional. See Tenure of Office Act.
Which one? There were two Tenure in Office Acts. And they served opposing goals.
The first one, the Tenure in Office Act of 1820, was enacted to give Congress the power to fire officials from the executive branch without presidential approval. The Tenure in Office Act of 1867 (the more famous one) was enacted to prohibit the President from firing officials in the executive branch without congressional approval.
Both laws were eventually repealed by Congress. Neither was officially ruled unconstitutional while they were in effect, but the Supreme Court noted in a 1926 decision that they would be if they still existed.
This one as it goes along with what LSLGuy was quoting.
And I get that Myers v United States did not rule on the ToOA directly since it was already repealed but I think the implication is that any law where
Removing somebody [from the executive branch] required that a specific charge be laid against them and [Congress/Senate] would conduct the hearing to decide if removal was warranted.
would be found unconstitutional.
Okay. Fair enough. I was being overly flippant. Although the people who argue we should have restrictions on Trump’s ability to fire people probably also think we should have restrictions on his ability to hire people.
I agree with the argument that Congress should not have too much direct power over the executive branch. Each branch should be able to act with enough independence to carry out their roles. The President, as the primary figure in the executive branch, should have primary control over the hiring and firing of people in it.
There’s a natural tendency right now to want to place limitations on the executive branch due to the poor management it’s currently under. But we should remember that any restrictions we place on this administration will also affect future administrations, which won’t need these boundaries.
If the executive branch is being poorly run, the proper solution is to get rid of the guy at the top of the pile. We should hold the President responsible for mismanaging the system rather than blaming the system for being mismanaged.
It’s been awhile since I read it, but IIRC Douglas borrowed a Federal courtroom somewhere out west for some semi-routine hearing to show he was still sharp as a tack, but got confused, several times forgot what he was supposed to do next, and finally awkwardly adjourned court without having accomplished much of anything. Quite a public bellyflop. I don’t have a copy of The Brethren at hand, but if you checked the index and looked towards the end of all the references to Douglas, you’d probably find the story.
I don’t think that’s the modern view, even for those who loathe the current President and his appointees (both judicial and executive), and I certainly don’t believe that.
Some scholars believe that the “during good behavior” provision allows for Congress to provide for a method other than impeachment to remove judges, provided that there is due process and fact-finding.
True.
At the same time, designing a system that can so easily by hijacked by a single wannabe tyrant, whether Trump or somebody actually good at it, is a problem.
The original purpose of the Civil Service Act was to reduce the mass firing & hiring of whole departments to provide “jobs for the boys” of the latest incoming administration. IANA expert on the Tenure in Office acts nor the surrounding jurisprudence. But ISTM that the constitutional issue was having Congress being the trying/deciding body over a firing. Not that the Constitution provided some inherent protection to minor officials.
Having a President whose powers include firing anyone, leaving any position unoccupied indefinitely, being able to choose which laws to tell everyone to ignore, and being able to order the pardon or the non-prosecution of anyone for any thing at any time says the President (every President) has tyrannical power. All he needs is the will to do so.
While the above may be within the letter of the Constitution, it certainly does not square with the high-level intent of the Framers. It’s very brittle, as we are seeing just now.
And yes you are right that any restrictions placed on Presidents mis-managing their duties will restrict both good Presidents and bad. Which the Civil Service Act most certainly does and has for decades. And should continue doing so for decades to come.
So in other words LSLGuy, officials in the executive branch are in the exact same position as every worker in a “right-to-work” state and have an ignorant bully as a boss.