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What Happens If Ruth Bader Ginsburg Is Unable To Continue Working?


Sure, Supreme Court Justices are appointed for life.

That’s our system, and it avoids (or is supposed to avoid) things like undue influence to the members of the Supreme Court.

In much the same way members of Congress are frequently criticized for being “bought and paid for”, the lifetime appointment of Supreme Court Justices is supposed to mitigate against that risk.

But it does open up another interesting question.

What happens if a Justice becomes so sick or incapacitated that they’re unable to return to work?  

What’s the standard? 

Interestingly, the Supreme Court just weighed in on this very matter because of a 9th Circuit Appeals Court judge died before his opinion was published!

The Supreme Court handed down this wisdom, which I can’t help but wondering if it may apply to the infamous RBG:

“Federal judges are appointed for life, not for eternity.”

Here's more on that story, from NBC News:

The Supreme Court answered a question Monday that, surprisingly, hasn't been resolved before: If a judge dies after voting on a case but before the decision is announced, does the judge's vote count?

The liberal lion of the 9th U.S. Circuit Court of Appeals, Stephen Reinhardt, died March 29, 2018, but his vote was counted in a decision that came out shortly afterward. The case involved an equal pay lawsuit filed by a California teacher. Judge Reinhardt wrote an opinion for the full appeals court, but it wasn't announced until 11 days after his death.

A footnote at the beginning of the appeals court decision said that Reinhardt "fully participated in this case and authored this opinion" and noted that voting by the judges was completed before he died.

But the Supreme Court said Monday it's "generally understood that a judge may change his or her position up to the very moment when a decision is released." In order for a vote to count, a judge must be actively serving on the court when a ruling is rendered. Holding otherwise would have "allowed a deceased judge to exercise the judicial power of the United States after his death."

In an unsigned opinion with no noted dissents, the Supreme Court said, "Federal judges are appointed for life, not for eternity."

In a bit of a contrast to that recent Supreme Court opinion, Politico published an interesting analysis which essentially concluded the justices can stay for as long as they have a pulse.

Take a look:

In the past two months, Ruth Bader Ginsburg has fractured three ribs and had two cancerous nodules removed from her left lung. She was absent from oral argument last week and will miss this week’s arguments as well. Doctors say they expect her to be back on the bench in February, and until then she will review transcripts from her home and participate in the court’s decision-making remotely. But her return to work has not quieted critics who say that Ginsburg should have retired long ago and that her health issues are the latest evidence that justices should not be allowed to serve for life.

Ginsburg, who is 85, suggested this summer that she intends to serve “at least five more years” on the court. She is far from the first justice to linger on the bench into advanced age. John Paul Stevens retired at 90 in 2010, making him the oldest serving justice since Oliver Wendell Holmes stepped down from the bench two months shy of his 91st birthday in 1932. Stevens’ extended tenure produced significantly less hand-wringing than Ginsburg’s—a contrast partly attributable to Stevens’ hale health but also possibly driven by the gender bias that Ginsburg has battled throughout her career. Yet while the focus on Ginsburg may be out of proportion, the concerns generated by a graying judiciary cannot be blithely dismissed. Fears of judicial gerontocracy have flared at several earlier points in American history, including long before the court had any female members. 

The late Antonin Scalia waved off the idea of limiting the terms of justices as “a solution in search of a problem,” but the problem is not an imaginary one: Some justices really have clung to their positions long after their mental faculties have left them. Justice Henry Baldwin remained on the court for nearly a dozen years after his 1832 hospitalization for “incurable lunacy.” One of Justice Nathan Clifford’s colleagues described him as a “babbling idiot” in the final years before his death in 1881. Justice Stephen Field in the mid-1890s and Justice Joseph McKenna in the early to mid-1920s each reportedly spent the end of their tenures in a haze.

“Mental decrepitude” on the Supreme Court has continued into the modern era, as historian David Garrow has documented. Frank Murphy, who served in the 1940s, was likely addicted to illegal drugs by the end of his tenure, and his biographer wrote that “on at least one occasion,” with Murphy in absentia, his law clerk and two fellow justices “jointly decided what Murphy’s votes should be.” Justice Charles Whittaker teetered on the brink of nervous breakdown for much of his five-year stint on the court in the late 1950s and early 1960s. Hugo Black stayed on for more than two years after his wife concluded in 1969 that “his mentality has been impaired.” 

Nor was Black the last justice whose mind slipped while he was still on the bench. In 1975, his last year on the court, William O. Douglas was so severely disabled by a stroke that his fellow justices agreed to delay any decision in which Douglas’ vote could swing the outcome. Justice William Rehnquist developed a dependence on a sedative that caused him to experience hallucinations during withdrawal; at one point in late 1981, he tried to escape from George Washington University Hospital in his pajamas. Rehnquist recovered, but two of his colleagues—Lewis Powell and Thurgood Marshall—faced doubts about their mental capacities at the tail end of their careers.

The history of cognitive decline on the high court teaches two lessons. First, there is a real risk of a substantial time lag between the onset of mental deterioration and a justice’s retirement. But second, and as important, this is a risk that can be contained. No justice—no matter how deranged—can do serious doctrinal damage without the acquiescence of at least half his colleagues. And when a justice is so utterly incapacitated that he is unable to break 4-4 ties, the court can continue to function with an even number of active members. Originally, the court had only six justices; during the Civil War, it had 10; and it has functioned fine with eight members during prolonged vacancies. Indeed, there are notable virtues to having an even number of justices—one of them being that it then takes more than a knife’s-edge majority to overturn a lower court decision or strike down a law nationwide. 

The proposed solutions to “mental decrepitude” on the Supreme Court each come with flaws of their own. A common proposal is to fix the lengths of justices’ terms, with 18 years being the number most often suggested. Yet 18-year terms would not lay to rest the problem of mental decline. Murphy had been on the court for only eight years when his apparent drug dependence reached its height. 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. Granted, the risk of mental disability increases with advanced age, and 18-year term limits might on balance lead to a younger bench. Or they might not. Presidents might be inclined to select older nominees if justices could serve for only 18 years rather than for life.

Other ostensible benefits of 18-year terms are also likely to prove illusory. Advocates argue that a fixed term length will lower the stakes of confirmation battles. Perhaps, but fights over open court seats will be fierce whether the appointee wields influence over abortion and the death penalty for 18 years or for longer. What fixed term lengths will do, without a doubt, is to ensure that these fights occur more frequently. If the goal is to defuse some of the tension surrounding Supreme Court confirmations, then creating more vacancies is a curious choice.

And from the Washington Examiner:

With Justice Ruth Bader Ginsburg continuing to recover from cancer surgery, whispers about whether she should step down have grown louder. But as a member of the Supreme Court with life tenure, Ginsburg can remain on the bench for as long as she desires, no matter how sick she becomes. 

Ginsburg had surgery Dec. 21 to remove two malignant nodules found in her left lung and has been recuperating at her home ever since. The procedure kept Ginsburg off the bench on Monday and Tuesday, marking the first time she missed oral arguments in her 25-year tenureon the Supreme Court. 

Though she was not present for oral arguments, Chief Justice John Roberts said Ginsburg would participate in the cases by reading briefs and argument transcripts. 

In addition to reviewing relevant case material from home, Ginsburg has also voted in matters before the court. There is no written rule prohibiting justices who are missing from the bench from casting their votes. 

Before her cancer surgery last month, for example, Ginsburg voted remotely to deny a request from the Trump administration to enforce its new asylum policy, according to reports. 

At 85, Ginsburg is not the oldest justice to have served on the high court and is not the only one to have battled illness during their tenure. 

Justices Oliver Wendell Holmes and John Paul Stevens both retired at 90, and Chief Justice William Rehnquist served on the Supreme Court until his death in September 2005, nearly one year after he was diagnosed with thyroid cancer. 

Rehnquist, like Ginsburg, also worked from his home while recovering in October 2004 from a tracheotomy in connection with his cancer diagnosis.

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