DC: Justice Ruth Bader Ginsburg’s difficulty in carrying out her judicial duties has encouraged informal wagering about whether she can continue until President Trump leaves office. This is in bad taste and overshadows recognition of her outstanding career.
The problem of justices outliving their judicial capacity has recurred throughout U.S. history. But it may be growing more acute, as advances in health care enable physical strength to outlive mental capacity.
We do not yet have a satisfactory mechanism for addressing the issue. No statute forcing justices to leave office would be valid because the Constitution specifies that they “hold their Offices during good Behavior.” That’s a rough translation of the Anglo-Latin formula, “quam diu bene gesserit.” It literally means “so long has he shall have conducted himself well.” Justices serve until their death, retirement, resignation, or impeachment-and-conviction, whichever comes first.
One possible remedy is for family members or professional colleagues to pressure a failing justice into resigning or retiring. Another alternative is impeachment, conviction, and removal from office for “high … Misdemeanors.” In the constitutional context, this is a fiduciary standard, and is broad enough to include negligence or other breach of duty due to incapacity.
But neither pressure nor impeachment are satisfactory remedies. First, neither can be based fully on objective standards of competence. Is Justice Ginsburg better or less able to perform her duties than were Justices William O. Douglas or Hugo Black in their later years? Not only is that question often unanswerable objectively, but personal answers are likely to be colored by political preferences.
Similar political considerations may mar the decision of the justice himself. A jurist who might agree to being replaced by an Obama nominee might hang on to avoid being replaced by a Trump nominee — or vice versa. So there is no guarantee the object of pressure will yield to it.
The Constitution’s requirement that two thirds of senators vote to convict an impeached official offers some protection against arbitrary political action. But Congress has been unwilling to terminate distinguished judicial careers that way: The impeachment-and-conviction process has never been used successfully to remove a Supreme Court justice.
We are left with the alternative of constitutional amendment. But what kind of amendment? more here