I recall learning in my 12th grade American Government class that in recent history (read-about 20-30 years ago), there was a justice on the Supreme Court who went senile, and was not forced to retire or step down.
Is this true?
Not sure about recent times, but here’s an article about how the Supreme Court coped with the disability of its members over its history.
William O. Douglas was encouraged to retire by his brethren I believe. He was getting a bit erratic, but I would think Douglas was loathe to have a Republican appoint his replacement. But he couldn’t avoid it.
Douglas probably wouldn’t be too upset with the job that John Paul Stevens has done in his stead.
All conservatives think every liberal judge is senile.
All liberals think every conservative judge is senile.
Both will expound, at length and irrespective of forum, upon their point.
There is but one way to make them shut up:
Is there a nonpartisan definition of senile?
I’ve heard that lots of justices attempt to time their retirement so that a president they approve of will replace them.
Well, I don’t take Bob (“I believed”) Woodward at his word very often, but if you believe what he wrote in “The Brethren,” William O. Douglas was certainly senile toward the end. Even AFTER he’d finally been replaced, he continued to show up for Court sessions, until his best friend, William Brennan, finally (and with great reluctance) had to tell him to stay away.
Now, while I had little use for Douglas, I take no satisfaction in relating this. Whether we’re left (Douglas) or right (Reagan) leaning, old age can take a terrible toll on any of us. What happened to Douglas is cause for sadness, not for gloating.
Oh, please don’t think I was gloating or laughing about it. It IS interesting to learn, if true, but it’s also very sad. I was just curious as to who it was. He told us, but it was a while ago, and I could not for the life of me remember.
The way I recall The Brethren it was not like this. I thought the problem was Douglas’ declining physical health, which caused frequent long absences, and ultimately obstructed the proper functioning of the court. So during one of those absences (due to a massive stroke) they replaced him, but didn’t dare to break the news to him until after a while.
I may remember this incorrectly, though, as I cannot recall exactly how they managed to replace Douglas without his consent. Googling didn’t help much; Posner mentions ‘senile rages’, but doesn’t describe him as someone with memory loss or similar symptoms. Another site mentions a judge Fuller as having been probably senile at the end.
The answer would probably be in http://www.legallibraries.com/Leaving_the_Bench_Supreme_Court_Justices_at_the_End_0700609466.html]Leaving the Bench: Supreme Court Justices at the End.
I checked The Bretheren - as Tusculan comments, Douglas’ stroke caused major physical problems (paralysis, incontinence, constant pain), but did not directly affect his mental capacities. However, he became a very sick man, short of sleep, unable to sit on the Bench for any length of time, which inevitably affected his mental prowess - he would lose track of arguments, doze off during argument, and so on. So I wouldn’t say he was senile, but definitely no longer able to carry out his duties.
Woodward says that he eventually did resign, after talking about it with retired Justice Fortas, amongst others. However, he then kept trying to come back to the court and serve (apparently there are some procedural duties that retired justices are allowed to do), which caused considerable strain until he finally got the message.
The episode illustrates an interesting point: it appears that there is no mechanism in the U.S. Constitution to remove an incapacitated federal judge. Impeachment is for “high crimes and misdemeanours” - mental or physical incapacity wouldn’t seem to come within that category (although Chief Justice Rehnquist in his book on impeachment points out that one of the earliest impeachments in the federal system was for a judge who became mentally incompetent).
The same used to be the case for the President, other than the ambiguous reference in Article II, s. 1 about the duties devolving on the Veep if the President’s “Inability to discharge the Powers and Duties of the said Office.” That’s why Congress proposed Amendment XXV after the Kennedy assasination - what would have happened if Kennedy had survived, but as a vegetable?
28 U.S. Code 294(a) provides:
What this means is that, like other retired federal judges, a retired Supreme Court who is willing to may continue to serve as a federal judge to the extent he or she is willing to take on the work.
I understand that after his health caused him to retire from active service on the Supreme Court, Thurgood Marshall sat on a number of Court of Appeal panels.
The two chambers of Congress, acting independently, have exclusive jurisdiction over the meaning of this phrase, so if they decided that severe illness or injury leading to incompetence counts, it counts, period.
–Cliffy
Oh, I agree that whatever the two chambers say is it. But I can also see members of either chamber asking themselves if mental incapacity is a “high crime or misdemeanour.” They concluded it was, in the early case cited by Rehnquist C.J., but his point was that it was questioned at the time, and since, whether it was an appropriate use of the impeachment and removal power.